Date: 20020816
Docket: IMM-6614-00
Neutral citation: 2002 FCT 866
Ottawa, Ontario, this 16th day of August, 2002
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
YVETTE SIMMONS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the visa officer's decision wherein her application for permanent residence in Canada under the independent category was denied because her dependent son, Gary, is unable to meet the medical requirements of the Immigration Act (the "Act").
[2] Subparagraph 19(1) (a) of the Act provides 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,
(i) they are or are likely to be a danger to public health or to public safety, or
(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, don't l'avis est confirmé par au moins un autre médecin agrée, conclut :
(i) soit que ces personnes constituent ou constitueraient vraisemblablement un danger pour la santé ou la sécurité publiques,
(ii) soit que leur admission entraînerait our risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé
[3] In accordance with section 19 of the Act, the medical officers must assess and justify the "excessive demands" on health or social services in view of the particular nature of the disease, disorder, disability or other impairment ("the impairment"). The "severity or probable duration" of the impairment must also be assessed. There is no room left for speculation: the words "as a result" used in this provision command that the degree of impairment, and the probable consequences of that degree of impairment for excessive demands, be clearly identified (See Deol v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 1 (F.C.A.) ("Deol")). This necessitates a review of the health or social services existing in the particular region where the applicant intends to reside (See Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm L.R.(2d) 1 (F.C.T.D.)). Given that the word "excessive" is used in section 19 of the Act, where social services may be required - special education for example - the officer must evaluate the applicant's situation in terms of financial resources of the applicant, of the particular demand for these services, their suppliers - public and private - the age of the person concerned, and the existence of any family support, as the case may be (See Litt v. Canada (Minister of Citizenship and Immigration) (1995), 26 Imm. L.R. (2d) 153 (F.C.T.D.) and Wong v. Canada (M.C.I.), [2002] F.C.J. No. 980 (F.C.T.D.).) Again, as was stated by Cullen J. in Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 126 (F.C.T.D.), each and every applicant should be looked at in their "uniqueness".
[4] In Prada v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 109, Hansen J. noted at para. 15:
While the term "excessive" is not statutorily defined, its use in this context has been the subject of considerable judicial attention. In Ng v. Canada (Minister of Citizenship and Immigration) (1986), 1 Imm. L.R. (2d) 307 at 313, the Court states:
"..."Excessive" must indicate something out of the ordinary; a superabundant demand or demand of any extreme degree. If hospitals or health services are overtaxed, anyone having resort to them may cause a further stretching or straining of resources. That is not consistent with saying that their demands will be excessive. The test in the Act to which a medical officer must turn his mind is not whether or not in his opinion an applicant will place a demand on health services or social services or whether those services or any of them are overtaxed or overstretched, but whether in his opinion the applicant's admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services. ... The medical officer must turn his attention to the applicant before him, and to his or her demands or likely demands given the particular diagnosis the medical officer has arrived at."
[5] More recently, on behalf of the Federal Court of Appeal in Deol v. Canada (M.C.I.), [2002] F.C.J. No. 949 (F.C.A.), Evans J.A. notes at para. 23 - 24:
In addition, I would note that the statutory phrase is "excessive demands" not "excessive demand". The singular, "excessive demand", might well have been regarded as the correlative of "inadequate supply". However, it requires no linguistic stretch to interpret the plural, "excessive demands", as including both the cost and the availability of health services that a visa applicant is likely to require if admitted to Canada.
Moreover, it is unrealistic to regard cost and availability as unconnected. If enough people need expensive but low demand health services, resources may have to be diverted from other services for which demand is higher, thereby creating or lengthening waiting lists for those services. Alternatively, an increased demand for a particular service may prevent the reallocation of funds to services that are in short supply.
[6] The standard of review applicable when reviewing the visa officer's decision has been discussed in Fei v. Canada (Minister of Citizenship and Immigration) (1997), 131 F.T.R. 81, where the Court, after reviewing the jurisprudence applicable to the Board, states at para. 25 - 26 that:
These statements as to the standard of review are clearly made within the context of the Board's responsibilities and powers under the Act, and having regard to its expertise. It does not necessarily follow that judicial review of a visa officer's decision is subject to the same standard of review since visa officers do not have the appellate power vested in the Board with respect to the reasonableness of the opinion of the medical officers as to probable demands on public services.
Despite the difference between judicial review of the decision of the Board exercising appeal powers, and judicial review of a visa officer who has no statutory authority to overturn the opinion of the medical officers, this Court has on a number of occasions applied the standard of reasonableness to visa officers' refusals based on medical inadmissibility, and the same standard when reviewing the underlying medical opinion.
[My emphasis]
[7] The Court concluded at para. 41:
In my view, when a valid medical opinion is formed under subparagraph 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 subparagraph 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and his or her decision may be reviewed in this Court on that basis. It should also be noted that there is at present no impediment to an affected individual seeking judicial review of the medical opinion itself.
[8] In the case at bar, the applicant submitted her application for permanent residence in Canada under the independent category in or about February 1999 under the occupation of management analyst. Her husband and her two children were also included in her application. In May 1999, they were all issued medical instructions. An additional request was issued to Gary, the applicant's dependant son, in August 1999. A further request for additional information related to his medical condition was made by letter dated April 11, 2000, which read:
Before I make a decision whether your dependant is inadmissible, you may respond to the description of his medical condition(s) with new/additional medical information of your own which you wish us to consider.
You have sixty days from the date of the letter, to send new/additional medical information, not previously on your immigration medical file, to the doctor who did your/your dependant's examination. ...
[9] In response to this request the applicant submitted further information on or about June 22, 2000. This additional medical information was reviewed by the medical officer who concluded that:
... I do not find any reason to change my original determination of medical inadmissibility to Canada, as Gary Simmons would continue to require social services such as special education and special vocational training in a sheltered workshop and as such would create an excessive demand on Canadian social services. ...
[10] On November 23, 2000, the applicant received a letter indicating that her application for permanent residence was denied.
[11] The visa officer's reasons were clear regarding the denial of the application for permanent residence in the case at bar. The visa officer's decision, based on the assessment and recommendation of the medical officer (concurred by another medical officer), states that the applicant is not admissible considering the fact that Gary suffers from "Developmental Delay With A Learning Disorder" which "is likely to cause a demand on health or social services to such an extent that [he] is presently inadmissible to Canada". (My emphasis.)
[12] Gary was 15 years old at the time of the assessment. The medical officers' medical report, on which the visa officer based its decision, mentions:
If admitted to Canada, he and his family will be eligible for and will require a variety of social services such as special educational and special vocational training in a sheltered workshop. These requirements are expensive and are often in high demand with a long waiting period. These requirements will create an excessive demand on Canadian social services, thus making him inadmissible under Section 19(1)(a)(ii) of the Immigration Act.
[13] I find that the impugned decision is patently unreasonable and cannot stand in view of the requirements established by subsection 19(1)(a) of the Act and as interpreted by this Court in the cases mentioned above.
[14] First, I find that the visa officer's decision is merely a recitation of the medical officers' narrative and of the text of subsection 19(1)(a) of the Act. She provides no reasonable justification why the admission in Canada would place an excessive demand on Canadian social services, and as the case may be, on health service - since mistakenly, the visa officer has also added this latter ground in her decision. As in Deol, supra, and Prada, supra, I am of the view that the visa officer did not inquire into the reasonableness of the medical officers' conclusion. She erroneously assumed that since Gary has been diagnosed as suffering from "Developmental Delay With A Learning Disorder", this will automatically create "excessive demands".
[15] Second, having carefully examined the evidence that was before the visa officer when she rendered her decision, I also find that there is no evidence which can support the conclusion that the admission of Gary in Canada, as a dependant child, is likely to cause excessive demands on health or social services. As in Fei, supra, I am of the view that the medical opinion set out in the medical narrative cannot be justified due to the failure of the medical officers to obtain or seek the information necessary for a fair evaluation of the grounds which formed the basis of their inadmissibility decision.
[16] Third, I am also of the view that the medical officers erred in concluding that Gary would need social vocational training in a sheltered workshop. Since Gary was only 15 years old at the time of the assessment, and given the fact that the Draft Developmental Disabilities Condition Report of the Department from 1995 used by the medical officers indicates that day programs - vocational training or supported employment - does not become a cost issue until 21+ years of age, this conclusion is unreasonable in the circumstances.
[17] Lastly, I note that the visa officer's refusal is based on the fact that Gary has been diagnosed as suffering from "Developmental Delay With A Learning Disorder". Moreover, Dr. James Anderson, the medical officer who made the assessment has recognized since then that the determination of "excessive demands" was not based on this particular diagnosis, but on "the requirements as discussed in the CIC Developmental Disabilities Condition Report, of an individual with mild mental retardation" (Affidavit of Dr. James Anderson, para. 25). Apart from the fact that the fairness letter failed to disclose such a central conclusion in the reasoning of the medical officer, such an equation is not authorized under subsection 19(1)(a) of the Act, constitutes an error on the face of the record and a fatal flaw which vitiates the medical opinion, and accordingly, the visa officer's decision.
[18] In view of the conclusions reached above, it is not necessary to analyze the other grounds of review raised by the applicant, and more particularly whether or not the rules of natural justice or fairness have been breached here in light of the comments made by the Federal Court of Appeal in Khan v. Canada (Minister of Citizenship and Immigration) (2001), 208 D.L.R. (4th) 265.
ORDER
THIS COURT ORDERS that:
[1] For the above reasons, this application for judicial review is allowed with costs;
[2] The visa officer's decision is set aside; and,
[3] The matter is remitted back for medical reassessment by different medical officers and redetermination by a different visa officer.
"Luc Martineau" ____________________________
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-6614-00
STYLE OF CAUSE: YVETTE SIMMONS
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 6, 2002
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU
DATED: AUGUST 16, 2002
APPEARANCES:
MS. MARY LAM FOR THE APPLICANT
MS. ALEXIS SINGER FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARY LAM FOR THE APPLICANT
Barrister & Solicitor
MR. MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA