Date: 19980930
Docket: IMM-466-96
BETWEEN:
LEUNG LUN Li
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of a visa officer to deny the Applicant"s application for permanent residence on the ground that he was medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act1 (the "Act"). The Act provides:
| 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 dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont 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; |
[2] The Applicant applied for permanent residence under the "self-employed" category and was invited to a selection interview. Although the Applicant did not qualify for admission under "self-employed", the visa officer, with the approval of the Deputy Program Manager, decided to exercise a positive discretion under Regulation 11(3) of the Act and approved him under the "independent" category.
[3] Following his application, the Applicant was examined in Hong Kong, by Dr. Ngai, a designated medical practitioner. As indicated in Dr. Ngai"s report,2 the Applicant had had his left kidney removed in 1982. The Applicant"s urinalysis revealed a positive +4 reading for proteins and his prognosis was "fair." As a result of the abnormal urinalysis, further medical tests were requested and were done, after which the medical officer concluded that "the medical evidence considered by me clearly demonstrated that the Applicant suffers from renal failure. ... The medical evidence also indicated that the Applicant was excreting protein into his urine (i.e. proteinuria) which indicates an overall failing of the Applicant"s remaining kidney."3
[4] In the opinion of the medical officer, which was concurred in by another medical officer, the Applicant"s admission would cause or might reasonably be expected to cause excessive demands on health or social services.
[5] Prior to the refusal letter, the Applicant was sent a "fairness letter," dated July 12,1994, which informed the Applicant that there was "a medical notification stating that [he is] suffering from Renal Failure which in the opinion of the medical officer, "will likely cause excessive demand on Canadian health services""4 and that he had 60 days to provide additional information to the doctor who examined him, either from his own family doctor or a specialist of his own choice.
[6] The Applicant submitted additional medical information, consisting of the reports of Dr. Hui and Dr. Chan, on September 7, 1995.
[7] The memo which confirms that the additional medical information was considered, but did not alter the medical officers" opinion, was not signed by either Dr. Davies, nor Dr. Beltran, the medical officers, and is dated 2 January, 1996.5
[8] In the refusal letter, dated December 20, 1995, the visa officer acknowledged that the Applicant"s doctor had submitted additional information, but stated that the medical determination remained unchanged.
[9] Consequently, the Applicant was declared medically inadmissible pursuant to subsection 19(1)(a)(ii) of the Act.
ANALYSIS
[10] The primary issue in this case is whether or not the Applicant was denied procedural fairness?
[11] Under subparagraph 19(1)(a)(ii) of the Act, the visa officer has no authority to review the diagnosis of the medical officer. However, the visa officer has a responsibility to intervene where the opinion is based on an obvious mistake of fact, is inconsistent or incoherent, or where cogent evidence was not considered.6
[12] Furthermore, fairness requires that a visa officer inform the applicant of a negative assessment and provide a meaningful opportunity to respond to the concerns of the medical officers, before the visa officer makes his or her determination that the person is inadmissible.7
[13] The Applicant submits that there were several procedural errors committed by both the visa officer and the medical officers, in the rejection of the Applicant for reasons of medically inadmissibility. I have identified two significant defects, which, in my opinion, are serious enough to warrant setting aside the visa officer" decision:
| 1) the visa officer sent the rejection letter 13 days before the record showed that the medical officers had considered the additional medical information; |
| 2) in the fairness letter, which requested additional medical information, the visa officer failed to set out the criteria on which the medical officers" opinion was based, and to specify the nature of the services upon which the Applicant could reasonably be expected to place excessive demands. |
a) Consideration of the additional medical information
[14] Dr. Davies" affidavit outlines his consideration of the reports of both Dr. Chan8 and Dr. Hui.9 Dr. Davies states that:
| This information confirmed for Dr. Beltran and I that our original assessment and opinion, that the Applicant"s admission was likely to place excessive demands on Canada"s health services, was correct. ... [T]he additional medical information received did not provide any conclusive evidence which would warrant a change of the initial medical opinion.10 |
[15] However, the handwritten note confirming that the additional material had been considered was not in the certified medical record, which was before the visa officer at the time of his decision.11 Furthermore, the official memo, indicating that the requested additional medical information had been considered, was not signed by either Dr. Davies, nor Dr. Beltran, the two medical officers. Finally, this memo is dated 2 January, 1996, whereas, the final rejection letter is dated 20 December, 1995. In other words, the official memo confirming that the medical officers had considered the additional material was not written until 13 days after the rejection letter had already been sent. This is unacceptable.
[16] As stated by Cullen J. in Poste,12 when immigration officials request additional medical material in the fairness letter, they must seriously consider the information before making their decision and issuing the rejection letter:
| When a government body such as Immigration requests information of an individual, it is duty-bound to consider that information when received ... Even if the decision makers had considered the requested information, and had placed it in the context of all the circumstances of the case, there is nothing on the face of the record communicated to the applicant to indicate that consideration of the favourable material was seriously made. There is no appearance of justice. The decision makers thus failed the applicant in these basic duties of procedural fairness and natural justice in this case.13 |
[17] In the case at bar, the visa officer had a duty to ensure that, on the face of the record, the medical officers had seriously considered the reports of Drs. Hui and Chan before issuing the final rejection letter. The fact that the rejection letter is dated thirteen (13) days prior to the memo confirming the medical officers consideration of the additional medical information casts a serious doubt on whether or not this was done.
[18] Furthermore, the visa officer"s actions render the medical officers" opinion unreasonable, since on the face of the record, the Applicant was rejected as medically inadmissible before the medical officers had considered all of the relevant medical information.
b) Sufficiency of the fairness letter
[19] The Applicant submits that the fairness letter, which requested the additional medical information, did not disclose the criteria employed by the medical officers to determine excessive demand, nor did it specify the nature of the particular services upon which the Applicant could reasonably be expected to place excessive demands and consequently was insufficient to allow a meaningful response.
[20] In the case of Wong,14 the applicant"s dependent daughter had been found inadmissible, pursuant to subsection 19(1)(a)(ii), because she was diagnosed with Down"s Syndrome. Reed J. quashed the decision of the visa officer because the basis upon which the opinion was rendered had not been disclosed to the applicant.
| Most significant is the non-disclosure to the applicant of information concerning the basis on which the opinion was rendered. The applicant and his counsel wished to respond to the conclusion that admission of the daughter to Canada would, as a result of her medical condition, cause excessive demands on social services. In order to do this in an intelligent way they need to know what factors were considered relevant. In my view, the non-disclosure of the requested information constituted a breach of natural justice, is a breach of the rules of natural fairness.15 |
[21] I agree with Reed J. In my opinion, fairness requires that the "fairness letter" to the applicant include the criteria actually being employed by the medical officers in forming their opinion, as well as the specific nature of the services upon which the Applicant can reasonably be expected to place excessive demands, in order to ensure the applicant a meaningful opportunity to disabuse them of their opinion.
CONCLUSION
[22] The visa officer failed to ensure that, based on the face of the record, the requested additional medical material had been seriously considered by the medical officers, before issuing the rejection letter. This failure was not only a breach of the duty of procedural fairness, but it also rendered the medical officers" opinion unreasonable, since it was rendered before having considered all the relevant medical information.
[23] Secondly, the visa officer breached the duty of natural justice, by failing to provide the criteria upon which the assessment of excessive demands were based, and by failing to specify the nature of the services upon which the Applicant could reasonably be expected to place excessive demands, in the fairness letter. These omissions undermine the purpose of the fairness letter, denying the Applicant a meaningful opportunity to disabuse the medical officers of their opinion.
[24] The application for judicial review is allowed. The decision of visa officer, Jeffrey Barr, dated December 20, 1995, will be quashed and the matter will be sent back for redetermination by a different visa officer as expeditiously as possible.
[25] Counsel for the Respondent has requested that the medical evidence be frozen and that the Applicant be re-assessed, without being subjected to further medical tests. On this point, I was again referred to Wong.16 In that case, Reed J. found that the diagnosis of mild to moderate mental retardation was not in issue and that the daughter"s condition was not a deteriorating one. That is not the case here. The Applicant"s condition is a deteriorating one .
[26] Section 8 of the Act places the onus on the Applicant to prove that his or her admission would not be contrary to the Act or the Regulations. Therefore, the Applicant"s condition must satisfy the medical officers, with respect to the excessive demands on health and social services, at the time the application is processed. It is unfortunate that the procedural errors on the part of the immigration officers have caused the Applicant further delay. However, the application must be re-processed on the basis of current medical information.
[27] Since Counsel for the Respondent has requested an opportunity to make representations as to whether or not a question should be certified after the Reasons are issued, a final Order will be entered at a later date. Counsel for the Respondent shall have 7 days, after the issuing of these reasons, to submit in writing, representations on a question to be certified. If certification of a question is sought, Counsel for the Applicant may respond in writing within 7 days. The Respondent will then have 7 days to reply.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA (ONTARIO)
September 30, 1998.
__________________2 Respondent"s Application Record at 47-48.
3 Affidavit of Dr. William Anthony Mostyn Davies (30 July 1996) at 4.
4 Respondent"s Application Record at 32.
5 Respondent"s Application Record at 76.
6 Ajanee v. Canada (Minister of Citizenship and Immigration) et al. (1996), 110 F.T.R. 172 (T.D.); Ahir v. Canada (Minister of Employment & Immigration) (1983), 49 N.R. 185 (F.C.A.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 1; Gao v. Canada (Minister of Employment & Immigration) (1993), 61 F.T.R. 65 (T.D.).
8 See Affidavit of Dr. W.A.M. Davies, supra note 3 at 3.
11 Transcript of Cross-examination of Dr. W.A.M. Davies, (26 May 1997) at Q. 259-261.
12 Poste v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 145 (T.D.).
14 Wong v. Canada (Minister of Citizenship and Immigration) IMM-3366-96 (14 January 1998) (F.C.T.D.).