Date: 20010404
Docket: IMM-1842-00
Neutral citation:2001 FCT 293
Ottawa, Ontario, Wednesday the 4th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MANUEL ONOFRE
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] In this application an order is sought compelling the Minister to comply with subsection 77(5) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") and to resume processing of Mr. Onofre's sponsored application for permanent residence in Canada and to "approve the applicant where the application met ‘the requirements of the Act and regulations, other than those requirements on which the decision of the Appeal Division has been given'".
FACTS
[2] The chronology of relevant events is as follows:
(i) On April 9, 1991 Mr. Onofre was found to be inadmissible under subparagraph 19(1)(a)(ii) of the Act on the ground that he suffered from "mental retardation" which would cause or might reasonably be expected to cause excessive demands on health and social services in Canada;
(ii) On May 9, 1996 an appeal from that decision was allowed in law by the Appeal Division of the Immigration and Refugee Board on the ground that the "medical opinion of the medical officers is, in and of itself, at the time it was made, clearly unreasonable";
(iii) Mr. Onofre's file was reopened and a new set of application, support documents and medical examinations was requested and provided after some period of delay not material to this application;
(iv) On February 10, 2000 the embassy processing Mr. Onofre's application received the medical officers' opinion that Mr. Onofre's admission to Canada was likely to cause an excessive demand on Canadian social services;
(v) On March 7, 2000 a visa officer wrote advising Mr. Onofre of the medical officers' opinion, and informing him that he or his sponsor could submit further information on the issue of his medical inadmissibility; and
(vi) On June 28, 2000 the visa officer wrote again advising that Mr. Onofre had been found to be inadmissible on the ground that he suffered from "mental retardation - moderate" and that his admission would cause or might reasonably be expected to cause excessive demands on health or social services.
THE ISSUE
[3] Mr. Onofre asserts that the issue of his inadmissibility on the basis of subparagraph 19(1)(a)(ii) of the Act in that he suffers from mental retardation had been determined by the Appeal Division and that it is therefore an abuse of process to require Mr. Onofre and his sponsor to refute an opinion of inadmissibility which had already been rejected on appeal as a ground for inadmissibility.
ANALYSIS
[4] The Minister submits that on this application this Court can neither determine the reasonableness of the June 28, 2000 decision on inadmissibility because that decision is not in issue and cannot be an issue in proceedings commenced prior to the making of that decision, nor issue an order of mandamus because the processing of Mr. Onofre's application has been completed. On careful reflection I have concluded that the Minister's submission is well founded and that there is no relief which the Court can grant in this proceeding.
[5] Mr. Onofre concedes that due to the effluxion of time a new medical examination was required. The gist of his complaint, and the source of his frustration, is his assertion that the most recent examination had no regard to the comments of the Appeal Division to the effect that inquiry was required as to what support was available to Mr. Onofre in Canada that was not from social services, and that only when that was known could the issue of the probability of excessive demand be addressed.
[6] I make no comment on the merit or otherwise of that assertion in respect of the most recent examination.
[7] However, I am satisfied that it is an issue to be addressed, if it is to be addressed, in either a judicial review of the June 28, 2000 decision or in a further appeal to the Appeal Division in respect of that decision.
[8] The flaw in Mr. Onofre's argument as to abuse of process in this proceeding is that it fails to recognize that the fact that the prior opinion as to admissibility was set aside by the Appeal Division did not finally dispose of that issue. The Appeal Division did not decide that Mr. Onofre was medically admissible to Canada. The effect of the Appeal Division's decision was simply to place Mr. Onofre in the same position he was in prior to the making of the invalid opinion. Mr. Onofre at all times remained required to establish that his admission into Canada would not be contrary to section 19 of the Act: King v. Canada (Minister of Citizenship and Immigration) (1996), 115 F.T.R. 306 (T.D.) at page 309 and Wong et al. v. Canada (Minister of Employment and Immigration) et al. (1992), 146 N.R. 319 (F.C.A.).
[9] In the result, I have concluded that this application for judicial review must be dismissed.
[10] The applicant sought certification of the following questions:
1. When the Immigration Appeal Board returns an application for landing to a visa officer for further processing after an appeal, pursuant to s. 77(5), with directions as to proof of medical inadmissibility under s. 19(1)(a)(ii) of the Immigration Act, and where the passage of time makes it necessary for a further medical examination of the applicant, does res judicata bar the visa officer from finding the applicant inadmissible a second time based on the same diagnosis, observations and reasons previously found by the IAB to be inadequate to support a finding of causing "excessive demands on health or social services" under s. 19(1)(a)(ii)?
2. Is such a determination of res judicata properly before the Federal Court, Trial Division
(a) where the visa officer has not made a final decision on the application, but has indicated his or her intention to make a finding of inadmissibility, or
(b) where the visa officer has rendered a final decision, and the applicant and sponsor have a remedy before the Immigration Appeal Board to appeal the visa officer's final decision?
[11] The Minister opposed certification of the questions.
[12] With respect to the first question the objection to certification was based on the fact that the question did not arise from the evidence before this Court because it is not known that the visa officer found the applicant to be inadmissible a second time based on the same diagnosis, observations and reasons previously found by the Appeal Division to be inadequate to support the finding. I find this objection to be valid because only on an application for judicial review of the June 28, 2000 decision of the visa officer would it be possible to determine whether or not the premise of the proposed question was accurate.
[13] The second question was objected to on the grounds that with respect with the first part of the question the visa officer had not indicated an intention to make a finding of an inadmissibility, but rather alerted the applicant to the fact that a medical doctor had found grounds to render him inadmissible and invited submissions on the point. The second part of the question was objected to because it was said not to be a question of general importance given standard case law about the requirements of res judicata. In my view, neither part of the proposed question arises on the record before this Court. The visa officer had not indicated any intention to make a finding of inadmissibility, nor had the visa officer rendered a final decision at the time this application was brought.
[14] In the result, no question will be certified.
JUDGMENT
[15] IT IS ORDERED AND ADJUDGED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge