Date: 20010214
Docket: IMM-4082-98
Citation: 2001 FCT 66
Ottawa, Ontario, this 14th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
WONG MO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review brought pursuant to subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-7 of the decision of Ms. Susan Barr, visa officer, dated July 6, 1998. In her decision, the visa officer refused the applicant's permanent residence application on the ground that the applicant's son, Kok Ho Wong, was medically inadmissible.
[2] The applicant seeks an Order of certiorari quashing the above decision; an Order of mandamus directing the respondent to process the application for permanent residence, or in the alternative, referring the matter to a different visa officer for redetermination; a Declaratory Order stating that the applicant is to meet the necessary requirements to have his application approved; and such further and other relief as counsel may advise and this Honourable Court deem just.
Background Facts
[3] The applicant applied for permanent residence status under the Investor Class on February 26, 1997. The applicant's wife, son and two daughters were to accompany him as dependants to his intended destination of Montreal, Canada.
[4] On September 6, 1997, the applicant's son, Kok Ho Wong, was examined and was the subject of a medical report by Dr. Tong. Dr. Tong indicated that a psychologist's assessment was needed. On December 11 and 19, 1997, Kok Ho Wong was assessed by psychologist Anita Leung. Dr. Tong forwarded his report and that of the psychologist to the Medical Section of the Canadian Commission in Hong Kong. On February 26, 1998, medical officer Dr. Axler completed a Medical Notification, the narrative of which reads as follows:
DIAGNOSIS / DIAGNOSTIQUE
317 MENTAL RETARDATION - MILD
NARRATIVE / COMMENTAIRE
This 13 year old dependent child has mild grade mental deficiency with a full scale IQ of 50.
He presently attends a new category of schools in Hong Kong established to provide formal education to children with severe learning difficulties.
While he is generally able to take care of most of his own personal needs, his social know-how is inadequate and he requires special care and continuous supervision.
He will continue to require special education in Canada, the cost of which are at least twice that of the average student.
This requirement for special education is considered an excessive demand on social services and he is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act.
[5] The applicant was informed by letter dated May 5, 1998, that his dependant son would probably be medically inadmissible to Canada. However, before a final decision on the applicant's application would be rendered, he was provided with sixty days to submit any further information (medical or otherwise). In response, the applicant's representative sent a medical report of Dr. Wah (a neurologist) and a reference letter from Kok Ho Wong's school (C.C.C. Nim Tsi School). The letter stated the following with respect to the applicant's financial resources:
Furthermore, our client has a stable financial position with assets valued at approximately 877,425.00 CAD. With these resources, Mr. Wong have no problem to support his son in future.
[6] On June 29, 1998, Dr. Axler sent the visa officer an e-mail message in which he wrote:
We have received and reviewed additional medical information submitted on the a/n applicant.
This information does not change our diagnosis, profile or narrative.
The M-5 assessment still stands.
Dr. Axler
[7] On July 8, 1999, the visa officer then sent a refusal letter to the applicant which states in part:
On 5 May 1998, you were provided with a copy of the attached "Medical Notification" and informed that this would likely result in the refusal of your application. You were invited to make further submissions with respect to your dependant's medical condition and your personal circumstances.
The medical information you provided was reviewed by the medical officers who rendered the original opinion on your dependant's medical condition and they have informed me that their opinion is unchanged.
I have now completed the assessment of you immigration application. I regret to inform you that your dependant is a member of the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1976, in that your dependant are suffering from a 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 your dependant's admission would cause or might reasonably be expected to cause excessive demands on health or social services in Canada.
[8] Dr. Axler has left the Medical Services Branch.
Issues
[9] Both the applicant and the respondent frame the issues as:
1. Is the evidence contained in the respondent's affidavits admissible?
2. Was the medical officer's decision reached in error, thereby impugning the decision of the visa officer?
Applicant's Submissions
Admissibility and Evidentiary Value of the Respondent's Evidence
[10] The respondent filed two affidavits: that of Dr. Kerry Kennedy, a medical officer with the Department of Citizenship and Immigration who was not involved with the medical assessment of Kok Ho Wong, and that of Daniel Vaughn, Vice-Consul in Hong Kong who was not involved with the refusal of admission to Kok Ho Wong. Dr. Kennedy was cross-examined on his affidavit.
[11] A review of Dr. Kennedy's affidavit and the transcript of his cross-examination indicates that he can only proffer his reasons as to why he might consider Kok Ho Wong to be medically inadmissible. The applicant submits both affidavits should be found inadmissible, as neither affiant can provide evidence, either by way of personal knowledge or information and belief, of the opinions held by Dr. Axler at the time of the refusal. The applicant submits that how Dr. Axler reconciled the conflict between his opinion and the evidence before him, is solely within in his realm of knowledge and personal experience. The applicant relies on Rule 81 of the Federal Court Rules, 1998, S.O.R./98-106 in support of this submission.
[12] The applicant cites Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (F.C.T.D.) in which Justice Heald reviewed a refusal for permanent residence based upon medical inadmissibility. In Fei, supra, the applicant brought a motion to strike out portions of the respondent's affidavit evidence and selected portions of the physician's affidavits were held to be inadmissible. The applicant submits that in Fei, supra, the Court declined to admit portions of the affidavit which were the opinions of the physician, but for which there was no evidence that those opinions were held at the time the medical opinion was made. Justice Heald added at page 280 that there was "...also no indication as to whether they played any role in the formation of that medical opinion." The applicant submits that portions of the physician's opinions were also held to be inadmissible where they addressed present opinions and not opinions at the time the decision was made.
[13] In view of the above, the applicant submits that the affidavit evidence of Dr. Kennedy and Mr. Vaughan should be found inadmissible.
Standard of Review
[14] As to the appropriate standard of review, the applicant cites and relies on the standard of review set out in Fei, supra at page 292.
Merits of Dr. Axler's Opinion
[15] The applicant submits that the essence of Dr. Axler's opinion is contained in the medical notification form. The applicant argues that an analysis of Dr. Axler's comments alongside the evidence that was apparently before Dr. Axler, leads to the conclusion that his findings are unsupportable. Although the comments concerning Kok Ho Wong's I.Q. and his attendance at a school for children with severe learning difficulties are supported by the evidence, Dr. Axler fails to indicate that the school is part of the mainstream school system in Hong Kong.
"Special Care"
[16] The applicant submits the Department-commissioned psychological assessment makes no reference to a requirement for "special care" and that in fact, the report concludes, among other things, that Kok Ho Wong can go to school by himself, that his attention and memory are satisfactory, and that his articulation is clear and he is literate. Furthermore, the report concludes that upon leaving school, he should be able to take up manual or semi-skilled work. Although the assessment also refers to inadequate social know-how, an inability to conduct "abstract conceptual thinking", and weak verbal and spatial reasoning, none of these comments, in the applicant's submission, suggest a requirement for "special care."
[17] The applicant also argues the neurologist's report in which Dr. Wah states that Kok Ho Wong "...required no constant supervision for his daily personal care. In fact, he traveled [sic] by himself daily to school and back home," provides no evidence from which a requirement of special care can be derived.
[18] In the event that Dr. Kennedy's evidence is held to be admissible, the applicant submits that he does not identify the basis for concluding "special care" was required. The applicant submits Dr. Kennedy acknowledged on cross-examination that special care could involve familial care, but "...does not have to be." In any event, the applicant argues there was nothing on the record indicating that Kok Ho Wong could not do activities such as going to the market and buying something. In fact, the applicant argues the evidence suggests a measure of independence. As such, the applicant submits there was no basis to conclude that "special care" was required.
"Constant Supervision"
[19] The applicant submits that the psychologist's report did not refer to a requirement for constant supervision. Rather, as noted above, the applicant argues that upon completion of his schooling, Kok Ho Wong should be able to work in a manual or semi-skilled position. This conclusion is completely at odds with a supposed requirement for constant supervision. Furthermore, Dr. Wah's report specifically contradicted Dr. Axler's conclusion of constant supervision. A letter from his school states that Kok Ho Wong was totally independent in terms of his self-care skills. The applicant submits Dr. Kennedy was unable to reconcile a finding that "constant supervision" was required in light of the evidence. Moreover, the applicant argues that on cross-examination, Dr. Kennedy acknowledges that all students, to an extent, require supervision in school. The applicant submits that supervision in school is not "constant supervision."
[20] The applicant argues Dr. Kennedy dismissed Dr. Wah's conclusions based on the belief that the information in the report was self-serving evidence obtained by Kok Ho Wong and/or his parents. The applicant notes that Dr. Kennedy was prepared to rely on Ms. Leung's psychological assessment, which drew upon the same source of evidence, but was not prepared to accept Dr. Wah's report. Furthermore, the applicant notes this concern was never brought to his attention. In summary, the applicant submits there was no basis for reaching the conclusion that Kok Ho Wong required "constant supervision."
Requirement and Costing of Special Education
[21] The applicant submits that Dr. Axler concluded Kok Ho Wong required special education, despite evidence from his school that it was part of Hong Kong's mainstream educational system. Dr. Axler, in the applicant's submission, failed to assess whether Kok Ho Wong could be mainstreamed in the Canadian educational system (which would not constitute an excessive demand).
[22] The applicant submits that under cross-examination, Dr. Kennedy acknowledged the "key informants" who provided information and the "costing data" for the Medical Officer's Handbook were derived from sources in Ontario, British Columbia and Alberta. The applicant submits there was no information specific to the Province of Quebec, where the applicant was destined. Moreover, the applicant submits there is no evidence indicating that the handbook was before Dr. Axler when he formed his opinion.
[23] The applicant argues that the costs associated with providing support in some provinces would not be applicable to other provinces. Such an example is that the Province of Ontario will pay for diapers up to the age of five, while this is not the case in British Columbia. The applicant submits there is no evidence as to whether this is a state-funded cost in Quebec. The costing model, in the applicant's submission, estimates costs of caring for an individual with mild mental retardation and is also generic. However, there is no evidence as to whether Kok Ho Wong required the types of services set out in the model. For example, Dr. Kennedy acknowledged there was nothing in the record to indicate whether at age 5, Kok Ho Wong required diapers, as the model stipulated.
[24] The applicant submits if Dr. Axler did indeed rely upon the Medical Officer's Handbook, such reliance was unreasonable. The Handbook, in the applicant's submission, does not provide a meaningful benchmark of costs outside of British Columbia, Ontario and Alberta, nor does it serve a useful purpose, unless there is evidence that the services required by an individual would actually accord with those described under the generic cost model.
[25] In conclusion, the applicant submits a review of Dr. Axler's Medical Notification in conjunction with the evidence, leads to the conclusion that he erred in his finding of medical inadmissibility. Therefore, the visa officer's reliance upon the invalid medical opinion constituted an error in law according to the applicant.
Respondent's Submissions
Admissibility of Respondent's Affidavit Evidence
[26] The respondent submits there are four problems with the applicant's argument under this heading. Firstly, Dr. Axler has left the foreign service. Secondly, and in part, because the requirement for an interview was waived (at the applicant's request), Dr. Kennedy is in as good a position as was Dr. Axler to go through the chart and render an opinion on Kok Ho Wong's medical inadmissibility, being that both were medical officers.
[27] Thirdly, and as a related problem, the respondent argues the affidavit of Daniel Vaughan reflects what can be fairly termed as a "team approach" to the processing of visa applications in Hong Kong. The decision to waive interviews was approved by visa officer Bradwin Niblock and medical officers T. Axler and J. Saint-Germain signed the medical notification. Visa officer Susan Barr signed the decision letter that is now the subject of this judicial review. Her decision was referred to program manager Murray Oppertshauser for consideration of humanitarian and compassionate factors. The respondent submits that none of these people interviewed the applicant or any member of his family and that their knowledge of the facts comes from their review of the tribunal record, just as Daniel Vaughan's and Dr. Kennedy's does.
[28] Fourthly, and perhaps most importantly in the respondent's submission, the tribunal record speaks for itself, whether or not any or all of the respondent's affidavits are ruled inadmissible by this Court. The respondent cites the decisions of Awwad v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 209 (F.C.T.D.) and Wang v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 278 (F.C.T.D.) in support of this argument.
Standard of Review
[29] The respondent acknowledges the standard of review set out by Justice Heald in Fei, supra and as well, refers the Court to the decision in Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (F.C.T.D.) at paragraphs 5, 6, 8 and 11.
The Merits of the Medical Opinion
[30] The respondent submits Dr. Axler's use of the words "special care" is justified on the basis of the letter found at page 33 of the applicant's record alone. This letter describes the C.C.C. Nim Tsi School as a new category of secondary school established to provide formal education to children with severe learning difficulties. By definition, one would think, in the respondent's submission, that such a school provides both "special care" and "special education." Likewise, the respondent submits Dr. Leung's report supports Dr. Axler's conclusion that "special care" would be required. Moreover, the respondent argues the excerpts from Dr. Kennedy's cross-examination concerning the weight of Dr. Leung's findings speak for themselves in this regard.
[31] The respondent submits Dr. Axler's use of the words "constant supervision" was open to him on the evidence as well. Dr. Leung's report states that Kok Ho Wong's social know-how is inadequate and that abstract conceptual thinking is beyond his comprehension. Dr. Kennedy's explanation about the "pivotal" nature of Dr. Leung's assessment is, in the respondent's submission, self-explanatory.
Special Education
[32] The applicant takes issue with Dr. Axler's conclusion that Kok Ho Wong would continue to require "special education." In response to this, the respondent submits the Hong Kong school attended by Kok Ho Wong describes itself as a new category of secondary schools established to provide formal education to children with severe learning difficulties. The respondent submits that if this is not a form of "special education", it does not know what form is. In any event, the respondent submits that it is well established that specialized education is a "social service" within the meaning of the Act and the Immigration Regulations, 1978, S.O.R./78-172. The respondent offers the decision of Ma, supra in support of this submission.
[33] The respondent submits that in short, the applicant's submissions merely question the relative weight of evidence placed on Dr. Leung's report versus the ostensible lack of weight placed on other evidence. The respondent submits it is not for this Court to again weigh the evidence, nor to enter into a detailed review of what data was and was not relied upon by the medical officers. Ma, supra is offered in support of this submission.
The respondent further submits the applicant is speculating in paragraphs 51 through 54 of his memorandum of fact and law and that if Dr. Axler did indeed rely on the Medical Officer's Handbook (although there is no evidence that he did), that reliance would be immaterial to his decision. Dr. Axler's conclusion, in the respondent's submission, would have been the same with or without reference to the Handbook.
Relevant Statutory Provisions
[34] Rule 81 of the Federal Court Rules, 1998 states:
| 81. (1) Affidavits shall be confined to facts within the personal knowledge of the deponent, except on motions in which statements as to the deponent's belief, with the grounds therefor, may be included. (2) Where an affidavit is made on belief, an adverse inference may be drawn from the failure of a party to provide evidence of persons having personal knowledge of material facts. |
81. (1) Les affidavits se limitent aux faits don't le déclarant a une connaissance personnelle, sauf s'ils sont présentés à l'appui d'une requête, auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l'appui. (2) Lorsqu'un affidavit contient des déclarations fondées sur ce que croit le déclarant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance personnelle des faits substantiels peut donner lieu à des conclusions défavorables. |
|
[35] Subparagraph 19(1)(a)(ii) of the Immigration Act states:
| 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 don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't 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; |
|
Analysis and Decision
[36] Issue 1
Is the evidence contained in the respondent's affidavits admissible?
Dr. Kennedy was not one of the medical officers involved with the assessment of the applicant's son. Dr. Kennedy reviewed the chart prepared by Dr. Axler and used when Dr. Axler formed his medical opinion concerning the applicant's son. There was no affidavit filed by either Dr. Axler nor the other medical officer. On cross-examination, Dr. Kennedy admitted that he did not examine the applicant's son but only went through the chart. He stated:
I went through the chart and took what I thought what would be the reasons that Dr. Axler and the other medical officer would use to make a medical refusal.
The contents of the two Kennedy affidavits are not admissible in that the facts therein are not within the personal knowledge of Dr. Kennedy as required by Rule 81(1) of the Federal Court Rules, 1998. The respondent also submitted the affidavit of Daniel Vaughn, Vice-Consul in Hong Kong. Susan Barr was the visa officer involved with the applicant's son's application and made the decision thereon. Mr. Vaughn had no involvement with the file. I would exclude the Vaughn affidavit for the same reason as the Kennedy affidavit.
[37] Issue 2
Was the medical officer's decision reached in error, thereby impugning the decision of the visa officer?
Firstly it is to be noted, merely suffering from a disease or disorder does not render a person inadmissible: it is the effect of the disease that is critical to the determination. If, because of the nature, severity, or probable duration of the disease, excessive demands on health or social services would occur or might reasonably be expected to occur, the prospective immigrant is medically inadmissible to Canada.
[38] Excessive demand has been defined as "more than normal": Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.).
[39] This Court has also held that the visa officer may not review the assessment of medical officers but may inquire and consider the reasonableness of the conclusion that the prospective immigrant would reasonably be expected to cause an excessive demand on social or health services: Ajanee v. Canada (Minister of Citizenship and Immigration) (1996), 33 Imm. L.R. (2d) 165. The visa officer can and should ask whether the circumstances of the case indicate that there is in fact a probable excessive demand on health or social services. If the determination of the medical officer turns out to be found unreasonable by the Court or otherwise, then the decision of the visa officer, which was based on that unreasonable determination will be set aside.
[40] The respective roles of visa officers and medical officers in cases such as the present, were reviewed by Mr. Justice Heald in Fei, supra. He stated at page 91:
In my view, when a valid medical opinion is formed under s. 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 s. 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and this or her decision may be reviewed in this court on that basis.
[41] On the issue of an opinion of a medical officer that admission to Canada " . . . would cause or might reasonably be expected to cause excessive demands on health or social services", Justice Heald wrote at page 93:
While this decision is one of a discretionary nature, I am of the view that the medical officers have erred in applying the statutory test. It is an error to state through the medical narrative that the reasons for exclusion were extensive social and educational support services, the need for constant supervision, and the expense and supply of these services, while in actual fact the medical officers conceded that information highly relevant to determination of these factors was not before them. It is also apparent that they did not take effective measures to obtain this information.
Here, the medical officers took "effective measures" to ensure that they had an up to date psychological assessment before them. That psychological assessment would appear to indicate substantial progress on Josephine's part over an earlier assessment. The medical officers had available to them current indications of the level of family support available to Josephine. They would appear to have ignored this latter information though it is supportive of a portion of the summary and conclusions from the psychological report quoted earlier in these reasons.
[42] The assessment is an individual assessment which must consider each applicant's personal circumstances. In Lau v. Canada (Minister of Citizenship and Immigration) (1998), 146 F.T.R. 116 (F.C.T.D.), Mr. Justice Pinard wrote:
The applicant's main contention is that the medical officers failed to consider all of his daughter's personal circumstances prior to declaring her to be medically inadmissible. More particularly, Dr. Gordon Hutchings, as well as the visa officer, rejected family support as a consideration in determining whether or not his daughter was medically inadmissible.
[43] Also in Lau, supra, Mr. Justice Pinard stated at paragraph 14:
In the circumstances, it is my opinion that the lack of due consideration of "family support" constitutes a blatant failure to consider all of the evidence with respect to the personal circumstances in the applicant's file, and this warrants the intervention of this Court.
I believe that Dr. Axler addressed the individual circumstances of the applicant's son, but directed himself mainly to the medical condition.
[44] Dr. Axler's medical report states in part "he requires special care" (page 35 of medical record). The Department commissioned a psychological assessment prepared by Anita C. Leung. Dr. Leung states in part as follows (page 32 of record of applicant):
. . . At this stage, he presents no problem in social adjustment. On leaving school, he should be able to take up manual work or semi-skilled work.
There is no mention anywhere else that the applicant's son needs special care.
[45] Dr. Axler's medical report also states " . . . he requires . . . and constant supervision" (page 35 of medical report). I have not been able to find the support for this statement in any of the medical reports. In fact, the medical report of the family's doctor, Dr. Chan Yuk Wah states in part as follows (pages 14 - 15 of the record of the applicant):
Assessment of daily activities of living showed total independence and the Barthel test was 100%. He required no constant supervision for his daily personal care. In fact he traveled [sic] by himself daily to school and back home.
In summary, this 14 years-old boy suffers from minimal brain damage as a result of early-for-date labor [sic] affecting mainly his ability in learning mathematics. He enjoyed normal physical health and good companionship with other family members and peers in school. He was educated in school which belongs to the mainstream educational system in Hong Kong. His activities of daily living were full and independent and required no constant supervision.
A letter from the principal of the applicant's son's school reads in part as follows:
I would also like to state that, according to our teachers and school social workers who have been through close interaction with Kok-ho for the past five months the boy was totally independent in terms of his self-care skills.
[46] From my review of the medical reports and the other documents filed and considered by the medical officers, I have come to the conclusion that the medical opinion in this case includes a patently unreasonable error of fact in that the information available to the medical officers was not that the applicant's son, Kok Ho Wong required special care and constant supervision. I am of the view that the evidence referred to by me in this decision establishes the opposite conclusion. The patently unreasonable error of fact results in an error of jurisdiction and the opinion is not a valid opinion under subparagraph 19(1)(a)(ii) of the Act.
[47] As the visa officer utilized this invalid opinion to arrive at her decision to deny visas to the applicant and his family, her decision can be reviewed on that basis. I find that the visa officer has committed a reviewable error and therefore, her decision of July 6, 1998 must be set aside and the file should be referred to a different visa officer and different medical officers for a new determination.
[48] I have reviewed the record filed in this matter to find "that there is no . . ." factual basis to support the statement at page 35 of the medical report of the medical officer:
He will continue to require special education in Canada, the cost of which are at least twice that of the average student.
This requirement for special education is considered an excessive demand on social services and he is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act.
The only reference is Dr. Axler's own statement. There is no factual background for this statement other than the bald statements of the medical officers. I am of the opinion that the visa officer cannot assess the reasonableness of the medical opinion as it relates to "excessive costs" if there is no information as to the extent of the costs to be created by the applicant's son's condition. The review of the medical officer's opinion would, of course, be done in the context of the ruling in Fei, supra.
[49] In Rabang v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 314 (F.C.T.D.), Sharlow J. (as she then was) wrote the following at page 318:
The evidence in the medical record supports the medical officer's opinion insofar as it relates to Patrick's condition and his probable need for future medical attention, therapy and special education. However, with one minor exception (discussed in the next paragraph), there is no evidence as to what I call the non-medical aspects of the opinion, namely the availability, scarcity or cost of the publicly funded health or social services that Patrick is likely to require. No attempt has been made to fill this evidentiary gap with an affidavit. As a result, it is impossible to assess the reasonableness of the medical officer's opinion that Patrick's needs can reasonably be expected to place an excessive demand on health and social services in Canada.
The one exception is evidence that Patrick's special educational needs would be publicly funded in Canada. The report of Ms. Chan-Liu, submitted on behalf of the applicants, indicates that special education programs provided within the public school system would be appropriate for Patrick and available to him. Thus, the medical officer had an evidentiary basis for concluding that Patrick's special educational needs would be publicly funded. However, Ms. Chan-Liu says nothing of the cost or scarcity of those special educational services.
Similarly, Ms. Chan-Liu says that Patrick will require the services of a physical therapist, a speech therapist and a social worker, and that such services are available through the Surrey Place Centre in Toronto. But she does not say whether those services are or are likely to be publicly funded in Patrick's case. Nor does she comment on the scarcity or cost of any of those services.
It was argued at the hearing that I ought to presume that the non-medical aspects of the opinion were based on the medical officer's special knowledge or expertise. I cannot make any such presumption. This Court has said many times that a medical officer is not entitled to presume that a particular medical condition or disability must necessarily result in excessive demand: Deol v. Canada (Minister of Employment and Immigration) (1992), 145 N.R. 156 (F.C.A.); Jiwanpuri v. Canada (Minister of Employment and Immigration) (1990), 109 N.R. 293 (F.C.A.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.); Litt v. Canada (Minister of Citizenship and Immigration) (1995), 26 Imm. L.R. (2d) 153 (F.C.T.D.).
The application for judicial review is also allowed for the reasons contained in this paragraph and I grant the same remedy as contained in paragraph 47 of this decision.
[50] Neither party wished to make a request to certify a question pursuant to subsection 83(1) of the Act.
ORDER
[51] IT IS ORDERED that the application for judicial review is allowed and the visa officer's decision shall be set aside and the matter referred to a different visa officer and different medical officers for a new determination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 14, 2001