Date: 19981029
Docket: IMM-5208-97
BETWEEN:
LAM CHUN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] The applicant, Lam Chun, seeks judicial review of the decision of a visa officer dated November 10, 1997, refusing his application for permanent residence because his daughter was found medically inadmissible. By this application made pursuant to subsection 18.1 of the Federal Court Act , the applicant seeks an order setting aside the decision of the visa officer, Susanna Ching, dated November 10, 1997, and an order that the matter be remitted to different medical officers for reassessment of the applicant"s daughter as a dependent and subsequently for redetermination of the application.
| FACTS |
[2] On September 20, 1996, the applicant, Lam Chun, along with his wife and two children, applied for permanent residence to the Commission for Canada in Hong Kong (hereinafter referred to as Commission) in the entrepreneurial category. A previous application for permanent residence had been denied because the applicant"s daughter, Wai Huen Vida (hereinafter Vida), was found medically inadmissible. On February 25, 1997, Mr. Chun was interviewed by the visa officer, Susanna Ching. On the same day, the medical officer, Mr. Hutchings, reviewed Dr. Andrius Balnionis" examination report dated June 19, 1996 and ordered that a complete psychometric assessment be performed. Hence, by letter dated February 26, 1997, the Commission requested that Vida undergo additional medical examinations, which were performed by Susan Fung on March 12, 1997. On April 17, 1997, the medical officer, Dr. Hutchings, assessed and prepared the medical profile which was forwarded to the reviewing medical officer, Dr. Axler. On the basis of the medical documents enumerated in paragraph 9 of Dr. Axler" affidavit, Dr. Axler concurred with Dr. Hutchings" opinion and diagnosis of mental retardation.
[3] By letter dated May 29, 1997, the Commission advised Mr. CHUN that in light of the results of the medical tests, his daughter was medically inadmissible to Canada under subparagraph 19(1) (a) (ii) of the Immigration Act. The applicant was thereby given 60 days to submit additional evidence he deemed necessary to the Commission. On July 28, 1997, the applicant submitted additional documentation from Doctor F.M. Otremba, from Susan Fung, a clinical psychologist and from Mr. Clement Lin. On November 10, 1997, Mr. Chun received a refusal letter from the Canadian Consulate General indicating that his daughter was inadmissible to Canada as her admission would or might cause excessive demands on health or social services in Canada.
SUBMISSIONS
[4] The applicant submits that the proceedings were tainted by procedural irregularities; that the visa officer unduly fettered his discretion (not argued at the hearing); that the visa officer made perverse findings of facts, ignored and misconstrued evidence; and that the visa officer erred in interpreting the Immigration Act and in deciding that special education is a health or social service within the meaning of subparagraph 19 (1) (a) (ii) of the Immigration Act.
[5] Firstly, it is submitted that the medical officers failed to provide sufficient details of the exact services which would be required by Vida, given that she can work and suffers from mild retardation only. Secondly, it is submitted that Vida was assessed in terms of what would be required for her to become independent, which lead the medical officers to conclude that her admission would cause excessive demands on health and social services in Canada. By relying on this assessment, it is argued that the visa officer erred and that the decision is unreasonable. Thirdly, it is submitted that any special education needed by Vida does not constitute a health or social service within the meaning of paragraph 9(1) of the Immigration Regulations, 1978.
[6] The applicant also submits that the "Fairness Letter" found at page 44 of Volume 1 of the Applicant"s Record is unfair in cases such as the case at bar, in that, the specific concerns of the doctors are not given and therefore no explanation can be given by the applicant to their concerns.
[7] The respondent is in agreement with the applicant that Vida is a "dependent daughter" pursuant to section 2 of the Immigration Regulations, 1978 , but argues that the medical opinion was sufficiently detailed and that the visa officer considered the evidence submitted by the applicant and the medical assessment which supports the conclusion that Vida would cause excessive demands on Canada"s health and social services.
ISSUES
[8] The applicant raises the following issues:
| 1. Whether the visa officer erred in law in assessing the applicant"s daughter as an "independent" rather than as a "dependent". |
| 2. Whether the finding of the medical officers, that the applicant"s daughter would cause excessive demands on health and social services was erroneously based on the premise that she was not a "dependent". |
| 3. In the alternative, whether the reasons for refusal were unclear as to whether or not the applicant"s daughter was a dependent. |
| 4. Whether the medical officers erred in law in not giving sufficient details of what social or health services would be needed by the applicant"s daughter. |
| 5. Whether the visa officer erred in law in concluding that some or all of the special education or sheltered workshops that the medical officer indicated that the applicant"s daughter might need, constituted health or social services. |
DISCUSSION
[1] The refusal of the visa officer is based on subparagraph 19(1)(a)(ii) of the Immigration Act and paragraph 9(1)(a) of the Immigration Regulations, 1978.
| 19. (1) Inadmissible Persons - 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,
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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_: (..)
|
| 9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if (a) he and his dependents, whether accompanying dependents or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations; |
| 9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si : a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; |
[2] Pursuant to these provisions, the applicant"s daughter was found to be medically inadmissible based on the results from the medical examinations. The documentation considered by the medical officer, Dr. Hutchings, and reviewing medical officer, Dr. Axler, is listed in Dr. Axler"s affidavit, at paragraph 9. The Medical Notification attached to the Commission"s letter dated May 29, 1997 (found at page 44, Volume 1, Applicant"s Record) sets out the nature of the medical impairment (see page 47, Volume 1, Applicant"s Record):
| DIAGNOSIS/DIAGNOSTIQUE |
| 317 MENTAL RETARDATION - MILD |
NARRATIVE/COMMENTAIRE
| This 21 year old dependent applicant has mental retardation with formal testing revealing a mental age of 51 months. |
| Although independent in activities of daily living and able to perform simple tasks she would not be capable of self support or independence. With her degree of cognitive impairment she would need some degree of care and supervision. She would need special vocational training and most likely a sheltered workshop environment. Should she become a landed resident she would be eligible for other social services for the mentally handicapped. These are expensive modalities often in short supply for other Canadians. |
| She would reasonably be expected to cause excessive demands on social services and is therefore inadmissible under Section 19(1)(a)(ii) of the Immigration Act. |
Also has:
1) Epilepsy
2) Pulmonary Tuberculosis inactive - Treated 1988
[3] It is to be noted that in the Narrative, the doctors refer to Vida as "This 21 year old dependent applicant ...".
[4] Further to this notice, Mr. Chun submitted three documents: a letter from Dr. Otremba regarding Vida"s medical condition, a psychological assessment performed by Susan Fung and a personal reference letter from Mr. Clement Lin. The assessment provided by Dr. Otremba shows that Vida has suffered from epilepsy since the age of two but has been seizure free for many years, has mild retardation and neurofibromatosis which requires no particular treatment. The psychological assessment prepared by Dr. Fung reports that Vida has achieved a social age of 9 years and 6 months on the Vineland Social Maturity Scale, that she has limited self care, community living and socialization skills and that she will require vocational training to help her develop work skills, social programs to develop interpersonal relationships as well as English training.
[5] By letter dated November 10, 1997, Mr. Chun was informed that after reviewing the information regarding his daughter"s medical condition his application was rejected due to his daughter"s inadmissibility pursuant to paragraph 19(1)(a)(ii) of the Immigration Act .
[6] The applicant submits that the visa officer erred in law in relying upon the medical assessment which considered the applicant"s daughter as an "independent" rather than as a "dependent". What the applicant argues is that although the refusal letter describes Vida as a "dependent" pursuant to the definition of "dependent daughter" as defined in section 2.(1) of the Regulations, which is also conceded by the respondent, her medical condition was assessed in light of her becoming independent, as in paragraphs (a) and (b) and not as a dependent who would remain a dependent as envisaged in paragraph (c) of the definition.
| "Dependent daughter" means a daughter who (a) is less than 19 years of age and unmarried, (b) is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
(c) is wholly or substantially financially supported by her parents and
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| "fille à charge" Fille : a) soit qui est âgée de moins de 19 ans et n'est pas mariée; b) soit qui est inscrite à une université, un collège ou un autre établissement d'enseignement et y suit à temps plein des cours de formation générale, théorique ou professionnelle, et qui :
c) soit qui est entièrement ou en grande partie à la charge financière de ses parents et qui :
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[7] In Sabater v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. 1375, the Court was asked to review the decision of a visa officer which rejected an application for permanent residence because of a dependent"s medical inadmissibility. Justice McKeown held that the Court was competent to review medical evidence and referred to the decision in Doel v. Canada (Minister of Employment & Immigration) (1993), 18 Imm. L.R. (2d) 1, where Justice MacGuigan stated that a proper medical assessment must appreciate and indicate the degree of retardation and the probable consequences of that degree of retardation, at page 5:
| It should be obvious from Jiwanpuri that the mere invocation of mental retardation leads to no particular conclusion. Mental retardation is a condition covering a wide range of possibilities from total inability to function independently to near normality. The concept cannot be used as a stereotype, because it is far from a univocal notion. It is not the fact alone of mental retardation that is relevant, but the degree, and the probable consequences of that degree of retardation for excessive demands on government services. It was that assessment that the board failed to make in the case at bar. |
[8] In the present case, the medical notification confirms the weight of evidence adduced by both the applicant and the respondent that Vida suffers from mild retardation. The applicant"s submission is that the medical notification fails to provide details of the consequences which would cause excessive demands on government services.
[9] In Sabater (supra), the Court held that in cases of mild retardation it was reasonable to impose a higher onus of proof on medical officers to demonstrate excessive demands on social services. Justice McKeown states:
| However, because he has not clearly stated in his report what the nature or severity of her mental retardation is, it is difficult to assess the reasonableness of his finding that she would cause excessive demands on social services. This is not to say that a person suffering from mild mental retardation could not be found to cause excessive demands on social services, as there are many factors that must be considered when making such a determination. In my view, however, it would be reasonable for there to be a higher onus of proof on the medical officer to demonstrate excessive demand in a situation of a mild retardation. That is, if it is found that a person suffers from mild retardation, it must clearly be set out why they have been found to cause excessive demands on social services. As it is not clear what the degree of mental retardation is in this case, it is not clear what level of proof is required to find excessive demand on social services. |
[10] Justice McKeown then referred to documentary evidence regarding the costs of severe and moderate retardation relied upon by the medical officers in coming to this conclusion, and stated that there seemed to be a recognized difference in the demands on social services based on the degree or level of mental retardation of an individual. In light of this distinction, Justice McKeown held that it was an error for the medical officer to fail to specify the degree of mental retardation suffered by the applicant"s daughter.
[11] In the case at bar, the notification addresses the probable consequences of mild retardation. The notification specifies the degree of retardation and refers to the need for special vocational training, a sheltered work environment, as well as social services for mentally handicapped which would be expected to cause excessive demands on Canada"s health and social system. I am not convinced that a medical officer should be held to a higher standard than this, such that the medical officer would be required to identify the specific health or social services from which a child would reasonably benefit once in Canada. Hence, I am of the view that the medical officers did not err in providing these reasons.
[12] Another related issue raised by the applicant is whether the medical assessment was performed with a view that Vida would become independent, as opposed to always remaining dependent. The applicant relies upon Wong v. M.C.I., (1996) 34 Imm. L.R. (2d) 18 (Fed. T.D.) for the proposition that a dependent child should not be assessed according to standards applicable to independent applicants. In Wong (supra), the Court reviewed the decision of a visa officer which refused an application for permanent residence because the applicant"s daughter, who suffered from Down"s syndrome, would cause excessive demands on health or social services based on her probable lack of future economic self sufficiency. The matter was sent back, on consent, with Justice Simpson"s directions, who reasoned as follows:
| The case law to date indicates that a problem has arisen because a probable lack of future economic self sufficiency has been used in some cases as the sole and determining reason for reaching a negative conclusion about whether an applicant"s condition "would cause or might reasonably be expected to cause excessive demands on Health or Social Services", pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act. |
| This narrow type of assessment has effectively meant that a dependent applicant has been assessed only according to a standard applicable to an independent applicant. |
| In this case, in order to avoid a repetition of such a narrow assessment, I am going to give the following direction in my Order sending the matter back for a redetermination. And I will read this slowly so that counsel can take notes. |
| The Medical Officers of Health are to assess Hilda as a dependent Applicant. Part of this assessment will involve determining the probable demands she will make on government services. |
| The assessment of probable demands is to involve an analysis of whether, on the balance of probabilities having regard to all the circumstances, including, but not limited to, the severity of her condition, the degree and effectiveness of the support promised by her family, and her prospects for economic and personal physical self sufficiency, Hilda will be cared for in her family home into the future. |
[13] Upon reading the Medical Notification, I am not persuaded that Vida"s application was considered as a dependent child who will reside and be supported by her parents. The Medical Notification refers merely to economic factors of assessment such as her inability to support herself or to achieve independence, the need for special vocational training and a sheltered workshop environment. In Dr. Axler"s affidavit, evidence is adduced that the assessment was based on information acquired while attending Medical Immigration Training Seminars. In these seminars, medical officers were instructed as to the costs of mental retardation, including educational and social services. Further, in paragraph 11 of his affidavit, Dr. Axler deposes that this assessment was made in reference to the Medical Officers Handbook (MITS-3, 1995) concerning the costing data of Mild Mental Retardation from ages 19 and above.
[14] However, the assessment does not appear to have taken into consideration all the circumstances of this case, including the degree and effectiveness of the support provided by her family, the severity of her condition, her prospects for economic and personal physical self sufficiency, and the fact that she will be cared for in her family home into the future.
[15] While it may be true that these services are in short supply in Canada, in my view, a finding of mental retardation will not necessarily result in excessive demands on health or social services. In Choi v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. 1068, I reviewed a number of judgments in order to attempt to determine what may constitute "excessive demands". I referred to the decision in Nyvlt v. Canada (1995), 26 Imm. L.R. (2d) 95, wherein Madame Justice Reed states, at page 98:
| It is troubling that there seems to be no precise definition of what constitutes "excessive demands for medical services". Immigration regulation 22 sets out a list of considerations to be taken into account when deciding whether a person is medically admissible. Among these are: whether the medical services which the individual will require is limited so that the provision of such services to Canadian citizens might be prevented or delayed; whether medical care or hospitalization is required; whether potential employability or productivity of the individual is affected because of the medical condition. |
[16] I also referred to the unreported decision of Jim v. Solicitor of Canada et al., T-1977-92, dated October 25, 1993, where Mr. Justice Gibson made the following comments, at pages 9 and 10:
| There remains the question of whether the demands on health or social services that might reasonably be expected to flow from the admission of the principal Applicant would be "excessive", that being the term used in subparagraph 19(1)(a)(ii) of the Act. Counsel for the Applicant argued that "excessive" should be interpreted as "unreasonable" or beyond what the system reasonably provides to everyone. This is not consistent with one of the meanings assigned the word "excessive" to the Oxford Dictionary of Current English which was cited by counsel for the Respondents, that being " ...more than what is normal or necessary." Against the relevant criteria set out in section 22 of the Regulations, and in light of the opinions of Medical Officers that are before me, particularly that of Dr. Weinerman, I conclude that the admission of the principal Applicant would cause or might reasonably be expected to cause more than what is normal, that is to say excessive, demands on health or social services in Canada. |
[17] In light of the above mentioned comments, I am satisfied that the medical assessment was improperly based on economic standards applicable to persons who would not necessarily be living with parents for at least the foreseeable future.
[18] In light of the above, I am returning this matter for a new assessment of Vida as a dependent child who will be living and be looked after by her parents for the foreseeable future.
CONCLUSION
[19] I am satisfied that the medical officers applied a test which imposed too high a standard in the assessment of the medical condition of a dependent suffering from mild retardation. I am satisfied that the assessment should not have been limited to economic factors given that the applicant"s daughter was a dependent who is not expected to become independent in the immediate future, as evidenced by her mental age. As such, the assessment cannot support the visa officer"s decision and I refer the matter back for a medical reassessment and redetermination.
[20] The following question has been submitted for certification by the applicant:
| Where a visa officer determines a mentally retarded child to be a dependent according to paragraph 2(c) of the Immigration Regulations 1978 - the definition of dependent daughter or dependent son, do the medical officers of health err in law in assessing that dependent child by using the same standard that is applicable to an independent applicant or a child that is expected to become independent? |
[21] Seeing that I have allowed the judicial review application, I see no need to certify the above stated question.
"Max M. Teitelbaum"
J.F.C.C.
OTTAWA, Ontario
October 29, 1998