IMM-1505-96
BETWEEN:
THIYAGARAJAH YOGESWARAN
Applicant
- AND -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
The applicant, a citizen of Sri Lanka, and a resident of the Sultanate of Oman, seeks judicial review of a decision made by a visa officer dated March 7, 1996, refusing the applicant's application for permanent residence because of the medical inadmissibility of his 11-year old dependent son who suffers moderate mental retardation as well as Down's syndrome.
The applicant raised eight issues which dealt with the medical inadmissibility of the 11-year old dependent son and the question as to whether his admission would cause, or might reasonably be expected to cause, excessive demands on health or social services.
1. The applicant submitted that the interim decision of a visa officer precluded the applicant from responding to the real matter in question. The visa officer stated:
I have received a medical notification stating your dependent ... is suffering from moderate mental retardation and Down's syndrome, which in the opinion of a medical officer, he will continue to need personalized special education and is unlikely as an adult to be self-supporting in Canada.
This information leads me to conclude that your dependent can be expected to cause excessive demands on health or social services in Canada. For this reason, your application for permanent residence may be refused.
Before I make a decision whether your dependent is inadmissible, you may respond to the description of you/your dependent's medical condition with new medical information of your own.
The visa officer repeats the demand for new medical information three times in the letter but in no place within the letter does he ask for further information on excessive demands on health or social services in Canada.
In a similar case Hussain v. Canada (Minister of Citizenship & Immigration) (1996), 35 Imm. L.R. (2d) 86 (F.C.T.D.) Noël J. stated at 91:
... In my view, it was clearly open to the Applicant to make submissions as to his son's level of dependency on social services during that period, and the fact that the Applicant failed to avail himself of this opportunity does not result in a breach of procedural fairness.
Although it would have been preferable if the visa officer had asked for an opinion on both medical condition and excessive demands on health or social services in Canada, in my view, the fact that he did set out the social services required, in particular, personalized special education and that the applicant's son is unlikely as an adult to be self-supporting in Canada, it was sufficient to meet the requirements of procedural fairness as stated by Noël J. The diagnosis of moderate mental retardation is the basis of the medical officer's views on excessive demands on health or social services in Canada.
2. The applicant submits that because the medical officer in his final letter relies on the medical notification form completed by two doctors prior to the interim letter and that one of the two doctors was not the same as the one who reviewed the new medical information submitted by the applicant, that this was again a breach of procedural fairness. However, the second doctor who reviewed the material from the applicant's doctor also reviewed the original medical evidence so that his decision was not based on just the new evidence but was based on the total medical evidence available to the respondent. There is no breach of procedural fairness.
3. In the refusal letter following the interim refusal letter dated March 7, 1996, the visa officer stated:
... I believe that the opinion of the medical officers that his admission to Canada will cause excessive demand on medical services is reasonable.
There is no requirement in subparagraph 19(1)(a)(ii) for the admission to cause excessive demands on medical services, it is excessive demands on "health or social services". Medical services is certainly a substitute for health services. If there was nothing else in the letter I would agree with the applicant. However, in the sentence before:
... As a result of the nature, severity or probable duration of the described condition, in the opinion of a medical officer concurred in by at least one other medical officer, Pavithran's admission would cause or might reasonably be expected to cause excessive demands on health or social services ...
Clearly, the visa officer was dealing with both health and social services and the last sentence cannot be taken out of context of the entire letter.
4. The applicant submits that the findings by the doctors in the medical profile of the medical notification form are contradictory. The doctors must select from several alternative summaries of assessment. In this case the doctors found, inter alia, that T4 which states "condition is expected to continue. Treatment is only partially effective and eventual deterioration is likely to occur" was the appropriate criterion and then in M5 stated "has a condition which is likely to cause excessive demand on health or social services to such an extent that the applicant is not at present admissible under Section 19(1)(a)(ii), but for which the expected response to treatment is such that future admission could be considered".
In T4 the doctor is stating that deterioration is likely to occur and in M5 the doctor is saying that the expected response is such that future admission could be considered which clearly shows a possibility of improvement as opposed to deterioration. The problem with looking at the criteria for T is that T4 was the only logical response. Further, in the M statement, M5 could have been replaced by M7 which states "has a condition which would cause excessive demand on health or social services, and which is not likely to respond to treatment. Inadmissible as Section 19(1)(a)(ii) applies". In my view, this conflict in and of itself is not sufficient to state that the decision of the visa officer is patently unreasonable.
5. The applicant submits that when the medical officer stated that the dependent son is unlikely as an adult to be self-supporting they were judging the dependant as an independent applicant. This is clearly not the case. The medical officer describes the son as "your dependent son". One of the criteria to be considered is whether a dependant is likely to be self-supporting as an adult. It was open to the visa officer to make this finding. It did not mean that he was being considered as an adult instead of a dependant. Clearly, it would be improper for the visa officer to state that as a dependant he was unlikely to be self-supporting since there is no requirement for dependants to be self-supporting. There was no evidence here that the applicant or his family intended to look after the dependant as a dependant for the rest of his life and, accordingly, it was in order for the medical officers to look and see whether the applicant was likely to become self-supporting. The cases in which the courts have sent the matter back to the visa officer for reconsideration are cases where the only factor that was considered by the visa officer was the likelihood of the dependant to be self-supporting as an adult. Here it was just one factor used by the visa officer and again this finding was open to the visa officer.
6. The applicant's personalized special education requirements are not a social service according to the applicant. However, the applicant did not give any reasons for coming to this conclusion. Counsel referred to a couple of cases where this matter has been raised but, in my view, there are a number of cases where special education was treated as a social service: see Gao v. Canada (Minister of Employment & Immigration) (1993), 61 F.T.R. 65; Sabater v. Canada (Minister of Citizenship & Immigration) (1995), 102 F.T.R. 268; Choi v. Canada (Minister of Citizenship & Immigration) (1995), 29 Imm. L.R. (2d) 85 (F.C.T.D.); Jaferi v. The Minister of Citizenship and Immigration, October 24, 1995, Court File IMM-4039-93 (F.C.T.D.); Gingiovenanu v. Canada (Minister of Employment & Immigration) (1995), 31 Imm. L.R. (2d) 55 (F.C.T.D.); and Ismaili v. Canada (Minister of Citizenship & Immigration) (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.). All accept that special education is one of the social services although it was not argued specifically in any of the cases except Sabater wherein I stated in obiter that:
While the Act is not determinative in this respect, in my opinion, services provided by schools to the handicapped may be considered as social services.
The applicant relied on the Ismaili case but it was decided on different grounds and in fact Cullen J. in Ismaili stated at 17:
... that the matter be referred back with the instruction that the respondent consider whether the admission of the applicant's son to Canada would result in excessive demands on health or social services.
He continued at 17:
... The mere fact that the applicant's son will require inexpensive medication and special schooling does not amount to excessive use.
Accordingly, Cullen J. accepted that special schooling could be excessive but found that just stating that special schooling amounts to excessive use is insufficient. I am satisfied that on the basis of the case law to date that special education is a social service.
7. Dr. Lazarus, one of the medical doctors who provided the respondent with the opinion, stated at paragraph 22 of his affidavit:
... I formed the opinion that the key social service the boy currently requires is placement in special education classes, which are made available only at significant public expense. Students with special needs cost provincial education ministries significantly more than average students. Any Canadian citizen or permanent resident has the right to publicly funded education, as per individual needs ...
Dr. Lazarus then continued to say that in the future he will also require a placement in a vocational program in order to provide him with the opportunity to work in a sheltered work environment. The applicant relies on Fong et al. v. Minister of Citizenship & Immigration, February 19, 1997, Court File IMM-158-96 (F.C.T.D.) where Gibson J. stated at 5:
The applicants propose to settle in Ontario if visas are granted to them. Material exhibited to Dr. Bernstein's affidavit goes to the costs associated with sheltered workshop services for persons such as Samuel. However, none of this material addresses the question of whether the social services that Samuel is most likely to rely on if he comes to Canada, that is, sheltered workshop facilities in Ontario, are limited to such an extent that those services might not be available or accessible to him, or if made available to him might reasonably be expected to result in Canadian citizens or other permanent residents in Canada being prevented from, or delayed in, accessing equivalent services. That is the issue that section 22 of the Regulations directs medical officers to consider in determining "excessive demand". Having failed to direct their attention in any meaningful way to this issue, at least on the basis of the evidence before the Court, I conclude that the medical officers, in their Medical Notification, erred in law in concluding that Samuel " ... might reasonably be expected to cause excessive demands on social services and is inadmissible under Section 19(1)(a)(ii) of the Immigration Act." [footnote omitted]
However, in that case the applicant was 30 years old and the Court was dealing with a demand that was not mandated by statute. In Ontario it is compulsory that dependants with special educational requirements be accepted and, therefore, there is an additional cost automatically. In my view, there was sufficient evidence before the medical officers for them to determine that the admission of the dependent son would cause or might reasonably be expected to cause excessive demands on health or social services. In my view, the onus then switched to the applicant to show that there was something wrong with the general material looked at by the medical officers. Although this is a medical opinion that is given by the medical officers, in my view, one cannot expect a full examination of the costs of social services in such a medical opinion. In the cases of Jim v. Canada (Solicitor General) (1993), 69 F.T.R. 252 (F.C.T.D.) andChoi, supra the Court has stated that excessive demand is "more than normal" and I believe that those cases correctly express the law. The issue of whether section 22 of the Immigration Regulations is ultra vires was not before me.
8. I have already referred to the fact that the doctors need not go into detail on specific costs with respect to the special education required. The courts have held that this is a matter for determination by the medical officers and the visa officers so the requirement is to determine whether the medical officer's opinion is reasonable. The courts have never required extensive statistical data since this is a medical matter.
Although I found that the applicant succeeded on one of the eight issues raised by them, I am satisfied that when I look at the decision as a whole, the visa officer's decision is not patently unreasonable. Accordingly, the application for judicial review is dismissed.
I was asked to certify a question:
Does the identified continuing need for personalized special education constitute a "social service" within the meaning of subparagraph 19(1)(a)(ii) of the Immigration Act?
The medical officer relied on the special education requirements as his reason for finding that there was excessive demand. I am prepared to certify this question since the answer could be dispositive of this case.
_______________________________
Judge
OTTAWA, ONTARIO
April 17, 1997
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAME OF SOLICITORS AND SOLICITORS OF RECORDS
CASE FILE NO : IMM-1505-96
STYLE OF CAUSE: THIYAGARAJAH YOGESWARAN VS MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING : TORONTO
DATE OF HEARING : LE 8 AVRIL 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MCKEOWN
DATED: 17 AVRIL 1997
APPEARANCES :
M. Irvin H. Sherman, c.r. FOR THE APPLICANT
Mme Marie-Louise Wcislo FOR THE RESPONDANT
SOLICITORS ON RECORDS :
Rekai & Johnson FOR THE APPLICANT
Toronto (Ontario)
George Thomson
Sous-procureur général du Canada FOR THE RESPONDANT