Date: 19980115
Docket: IMM-812-97
BETWEEN:
CHIU MING MA
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
WETSTON J.
[1] The applicant, Chiu Ming Ma, seeks review of the decision of a Visa Officer, dated April 30, 1996, denying him and his family admission to Canada as permanent residents, under s. 6(1) of the Immigration Regulations. The application was denied on the basis that the applicant's dependent son, Yin Ki Ma ("the child"), suffered from a medical condition -- "moderate to severe mental retardation with autistic features"-- which, in the opinion of two Medical Officers, would cause, or might reasonably be expected to cause, excessive demands on social services in Canada. As such, he fell into an ineligible class under s. 19(1)(a) of the Immigration Act.
[2] The issue to be determined is to what extent the duty of fairness should be manifested in the consultation process leading to the making of a determination under s. 19(1)(a)(ii) of the Act.
[3] The applicant argues that the Visa Officer is obligated, under a duty of fairness, to provide the applicant with an opportunity to provide information to challenge the opinions provided by departmental medical officers as to whether the child should be excluded under s. 19(1)(a)(ii) of the Act: Muliadi v. M.E.I. (1986), 66 N.R. 8 (F.C.A.). It is further argued that, in this case, the Visa Officer prejudged the question of whether the applicant's dependent son should be excluded under section 19(1)(a)(ii), without providing a legitimate opportunity for him to make representations about the determination.
[4] The respondent argues that the applicant was provided with an opportunity to submit further information to the Visa Officer, in accordance with the duty of fairness, and that the Medical Officers received and duly considered such further information provided by the applicant, prior to making their final determination.
[5] The role of the Medical Officers, under s. 19(1)(a)(ii) of the Act, is to form a medical opinion concerning whether a person's medical condition is such that his or her "admission would cause or might reasonably be expected to cause excessive demands on health or social services" in Canada. The role of the Visa Officer, in this respect, is only to determine whether any obvious error was made in the formulation of the medical opinions, based upon the record before the Medical Officers (e.g. that they failed to consider all the medical reports available to them: Lee v. M.E.I. (1986), 4 F.T.R. 86). In the absence of finding such an error, the Visa Officer will be bound by the medical opinions provided: Gingiovenanu v. Canada (M.E.I.) (1995), 31 Imm. L.R. (2d) 55 (F.C.T.D.); Ajanee v. Canada (M.E.I.) (1996), 110 F.T.R. 172.
[6] 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.
[7] 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.
[8] 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.
[9] The evidence before the two Medical Officers in this case demonstrated that the child suffers from a moderate to severe degree of mental retardation with autistic features, and, as a result, has significantly impaired levels of intellectual functioning and social skills, with the mental age of approximately a five year old child. This condition requires continuous supervision and assistance with many areas of his daily existence, as well as social services such as intensive and ongoing speech therapy, personalized special education and vocational training and placement. Contrary to that which was contended by the applicant, it is well-established that specialised education is a "social service" within the meaning of the Act and Regulations: Yogeswaran, supra; Gao, supra; Choi v. Canada (M.C.I.) (1995), 29 Imm. L.R. (2d) 85 (F.C.T.D.); Gingiovenanu, supra.
[10] To assist them with their evaluation of the issue of excessive demand, the Medical Officers were in receipt of correspondence concerning the availability of social services which would be necessary for the child (such as: speech pathologists, psychologists and occupational therapists), in Toronto, supplied by the applicant's counsel. The record also contained a document entitled "Developmental Disabilities Condition Report". This report, prepared by the Department, identified the needs, services, and costs associated with the management of developmental disabilities, including mental retardation.
[11] It is clear that the Medical Officers had sufficient information before them to form their medical opinions. It is not the role for this Court to second-guess the findings of the Medical Officers -- only to consider whether there was sufficient evidence on the record before them to form their medical opinions, and that they did not act arbitrarily or capriciously in making them: Jiwanpuri v. M.E.I. (1990), 10 Imm. L.R. (2d) 241 (F.C.A.); Deol v. M.E.I. (1992), 18 Imm. L.R. (2d) 1 (F.C.A.).
[12] The applicant further argues that the Visa Officer erred in failing to observe a duty of fairness in concluding that the child was medically inadmissible under the Act, before receiving the additional information adduced from the applicant in response to the Visa Officer's "fairness letter" of April 30, 1996. It is also submitted that the Medical Officers failed to consider the submissions made by the applicant's counsel on July 25, 1996, concerning the issue of excessive demand on social services.
[13] In his "fairness letter" to the applicant, the Visa Officer wrote:
| I have received a medical notification stating your dependent is suffering from moderate to severe mental retardation with autistic features. In the opinion of a medical officer, although capable of very simple tasks in a controlled environment, your dependent remains totally dependent upon those around him for assistance and supervision. He has a mental age of 49 months and a social age equivalent to 4.7 years old. He is not oriented to time and place. He is unable to count, handle money, read or write and has no communication or social skills. He is expected to require continuous supervision, specialized vocational, educational assistance and support. Consequently, he is inadmissible under Section 19(a)(ii) of the Immigration Act. |
| This leads me to conclude that your dependent can be expected to cause excessive demands on health or social services in Canada. For this reason, I could refuse your application for permanent residence. |
| Before I make a decision whether your dependent is inadmissible, you may respond to the description of your dependent's medical condition(s) with new medical information of your own. |
[14] I do not agree that, on the evidence before me, the Visa Officer fettered his discretion, or prejudged the matter of the child's medical inadmissibility. It also appears that the Medical Officers not only considered the information supplied by the applicant, but actually relied upon it to confirm their preliminary medical opinions.
[15] The duty of fairness is flexible, and must be applied within the context of an individual case. In this context, the object of the duty is to provide the applicant with a meaningful opportunity to bring to the attention of the Medical Officers the facts relating to a person's medical condition, and the issue of excessive demand: Fei v. M.C.I. (IMM-741-96, 30 June 1997, F.C.T.D.).
[16] In this case, while the Visa Officer's letter did not specifically request additional information concerning the issue of excessive demand, and the medical notice provided to the applicant did not specifically mention the Developmental Disabilities Condition Report relied upon by the Medical Officers in forming their opinions, it cannot be said that the applicant did not have, nor take full advantage of, the opportunity to address the issue of excessive demand, as well as the child's diagnosis and prognosis.
| [17] The obligation to provide notice of the medical opinions, and to provide the opportunity for further submissions, was satisfied by the Medical Officers through their correspondence with the applicant, in which they indicated the extensive social services which would be required as a result of the child's medical condition (Hussain v. Canada (M.C.I.) (1996), 35 Imm. L.R. (2d) 86 (F.C.T.D.) & Yogeswaran, supra). The further submissions made by the applicant concerning the issues of the child's medical condition, and the effect it would have on the provision of health and social services were fully considered in this matter. Accordingly, the application for judicial review shall be dismissed. |
[18] The parties did not ask for a question to be certified.
Judge
Ottawa, Ontario
January 15, 1998