Date: 20011019
Docket: A-708-00
Neutral citation: 2001 FCA 313
CORAM: LINDEN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
SOUNG IL PARK
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Heard at Toronto, Ontario on October 10, 2001.
Judgment delivered at Ottawa, Ontario, on October 19, 2001.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: LINDEN J.A.
NOËL J.A.
[1] This is an appeal from an order of Gibson J., dismissing the appellant's judicial review application which had challenged a decision of a visa officer employed at the Canadian Embassy in Seoul, Korea. By that decision the visa officer had refused the appellant's application for an immigrant visa, on the ground of the appellant's medical inadmissibility. Gibson J. held that Mr. Park was not denied procedural fairness by the Minister's officials who failed to make public or disclose to the appellant any updates or modifications to the 1992 Medical Officer's Handbook, (the "1992 Handbook"). Gibson J. also ruled that the doctrine of reasonable or legitimate expectation was not applicable on the facts of this case as a result of the continued distribution of the 1992 Handbook without the proviso that it might be incomplete or out of date.
[2] No reasons were issued but the following questions were certified for our consideration:
The Minister of Citizenship and Immigration having published the 1992 Medical Officer's Handbook and having continued to distribute it on request at all times relevant to the decision that is the subject of this application for judicial review:
(a) does the Minister breach the duty of fairness owed by her to the applicant by relying to the detriment of the applicant on material that modifies the content of the Handbook in assessing the medical condition of the applicant without publishing or disclosing that material to the applicant where no specific request for any such material is made by or on behalf of the applicant; and
(b) does the publication and continued distribution of the Handbook by or on behalf of the Minister give rise to a legitimate or reasonable expectation on the part of the applicant that he can rely on the Handbook as a guideline without making a specific request for any material that might modify it in a manner relevant to the applicant's application for landing?
[3] The same questions were certified by Gibson J. in the case of Young Doo Jang v. The Minister of Citizenship and Immigration (Court file A-270-00) and both appeals were heard together.
[4] In this appeal, it was noted that the medical notification form sent to Mr. Park was slightly different than the notification sent in the Young Doo Jang case as the former did not expressly mention costs. However, there is no doubt that costs were also understood to be a key issue as evidenced by the response from Mr. Park's lawyer who stressed that Mr. Park would not likely become a ward of the state as he had a substantial net worth.
[5] In my view, this difference is not material and therefore for the reasons enunciated in the case of Young Doo Jang v. The Minister of Citizenship and Immigration (Court file A-270-00), this appeal should also be dismissed, and both certified questions should be answered in the negative. No costs were sought and none should be awarded.
"B. Malone"
J.A.
I agree
A.M. Linden
J.A.
I agree
Marc Noël
J.A.
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