Date: 20021211
Docket: IMM-5903-00
Neutral citation: 2002 FCT 1283
Present: THE HONOURABLE MR. JUSTICE KELEN
Between:
AUGUSTINE OLIVEIRA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
KELEN J.:
[1] This is an application for judicial review of the decision of visa officer Hélène Simard, dated October 19, 2000, refusing Mr. Augustine Oliveira's application for permanent residence in Canada because his son, Francis Oliveira, was found to be medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The visa officer concluded that Francis Oliveira's admission would cause or might reasonably be expected to cause an excessive demand on Canadian social services.
FACTS
[2] The applicant, a citizen of Pakistan, is married with three sons. He applied for permanent residence in 1998. When his family was sent for medical examinations, it was discovered that his son Francis, born July 13, 1991, might be medically inadmissible under subparagraph 19(1)(a)(ii) of the Act. The examining physician, Dr. Shahrukh Hansotia, concluded that Francis had moderate to severe cognitive impairment and recommended further assessments of his medical condition.
[3] Francis was initially referred to Dr. Imtiazul Haq, a child psychiatrist, and Ms. Getee Ara Naeem, a clinical psychologist. Dr. Haq's assessment of Francis' intelligence was inconclusive, mainly as a result of Francis' excessive shyness. Dr. Haq did note that Francis' social adaptive functioning was age appropriate and that he did not have overt brain damage or "suffer from behavioural or psychotic disorder". Ms. Naeem attempted to administer intelligence tests based on Wechsler Intelligence Scale for Children - Third Edition and the Mini-Mental Status Form. Francis was unalbe to perform these tests because of his shyness. Ms. Naeem was able to determine that Francis' social-adaptive functioning was consistent with that of a child of his age.
[4] Dr. Kerry Kennedy, a physician employed as a medical officer with the Department of Citizenship and Immigration, reviewed the reports from Dr. Hansotia, Dr. Haq and Ms. Naeem and determined that further evaluation was required. He requested that Francis undergo a psychiatric re-assessment. The re-assessment was conducted by Ms. Saiqa Khan, a clinical psychologist. Although Francis was age 8 years and 4 months at the time of the re-assessment, tests indicated that he had the intellectual functioning of a 6 year-old and the social maturity of a 5½ year-old. On this basis, Ms. Khan concluded that Francis was not yet ready for formal school work, but that individualized education training was likely to improve his academic performance.
[5] Dr. Kennedy reviewed the medical reports and prepared a Medical Notification, in which he stated that Francis suffered from mild mental retardation and outlined the social services required to deal with his condition. Dr. Kennedy concluded that Francis would place excessive demands on the Canadian social services and was inadmissible under subparagraph 19(1)(a)(ii). Dr. Jacques Saint-Germain, a second Canadian medical officer, concurred in Dr. Kennedy's medical diagnosis and his medical inadmissibility determination.
[6] The visa officer advised the applicant of the medical officer' determination and of his right to provide additional information relevant to his son's medical condition within 60 days in a letter dated May 4, 2000. It was a standard form letter sent in medical inadmissibility cases known as a "fairness letter". Attached was the medical officer's Medical Notification, which contained a brief summary of the psychological assessments of Francis and the medical officer's conclusion.
[7] In response, the applicant submitted a report from Francis' school stating that he was performing well in a special class for mildly disordered children. The applicant also submitted a letter from Dr. Haq and Professor S. Haroon Ahmed confirming that Francis suffers from mild cognitive slowing requiring remedial coaching, but not institutional care. Ms. Naeem performed a psychometric evaluation on Francis, from which she concluded he was functioning at the level of a 5½ year-old child. On an IQ test performed by Ms. Naeem, Francis scored 55, which classifies his intellectual functioning in the deficient range and ranks him in the 0.1 percentile for children of his age. Also included was a report from Erum Maqbool, a clinical psychologist, which described Francis as "educable" and as an individual who, in his adult years, could live independently with minimal support.
[8] Dr. Kennedy and Dr. Saint-German reviewed the additional information, but remained of the opinion that Francis' condition would place excessive demands on social services in Canada. The visa officer refused the application on the grounds that the applicant's dependent child was medically inadmissible under subparagraph 19(1)(a)(ii). This decision is the subject of the application for judicial review.
RELEVANT LEGISLATION
[9] Subparagraph 19(1)(a)(ii) of the Act, prior to its repeal, read:
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 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_:
(i) soit que ces personnes constituent ou constitueraient vraisemblablement un danger pour la santé ou la sécurité publiques,
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
STANDARD OF REVIEW
[10] The standard of reasonableness, also referred to as reasonableness simpliciter, is applied when reviewing a visa officer's refusal based on an underlying medical opinion, see Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.). This means that the visa officer's decision must stand up to "a somewhat probing examination," see Canada (Director of Investigation and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748 at para. 56. Mr. Justice Dubé summarized the jurisprudence relating to the judicial review of medical inadmissibility decisions in Gao v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 306 at p.318 (F.C.T.D.):
The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact related to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations. [footnotes omitted]
Although the medical officer's opinion on excessive demand is not the subject of this application, the Court can assess the reasonableness of his opinion as it was relied upon by the visa officer. If the medical officer's opinion is unreasonable, then the visa officer erred by relying upon that opinion.
Relevant principles with respect to "excessive demands on health or social services"
[11] I will summarize the relevant principles applicable to this case before setting out my analysis.
(a) A medical officer is to form a medical opinion on whether a person's medical condition is such that it would be expected to cause excessive demands on health or social services, seeMa v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 at para. 5.
(b) There is a higher onus of proof on medical officers to demonstrate excessive demands on social services in cases of mild mental retardation (which is the case here), see Deol v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 1 (F.C.A.), Sabater v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 268, Chun v. Canada (Minister of Citizenship and Immigration) (1998), 154 F.T.R. 300, and Prada v. Canada (Minister of Citizenship and Immigration) (2001), 200 F.T.R. 109.
(a) A medical diagnosis of mental retardation does not mean that an individual is medically inadmissible; it is the visa officer's conclusion that retardation will result in an excessive demand on medical or social services that determines medical inadmissibility, see Canada (Minister of Employment and Immigration) v. Jiwanpuri (1990), 10 Imm. L.R. (2d) 241 (F.C.A.) and Deol, supra.
(b) The visa officer must determine whether any obvious error was made in the formulation of the medical opinions, see Lee v. Canada (Minister of Employment and Immigration) (1986), 4 F.T.R. 86. In the absence of such an error, the visa officer may act on the basis of the medical opinions provided, see Gingiovenanu v.Canada (Minister of Employment and Immigration) (1995), 31 Imm. L.R. (2d) 55 (F.C.T.D.) and Ajanee v. Canada (Minister of Employment and Immigration) (1996), 110 F.T.R. 172.
(c) In making this determination, the visa officer must assess all of the circumstances of the case and not simply accept the medical officer's determination, see Poste v. Canada (Minister of Citizenship and Immigration) (1997), 140 F.T.R. 126 at para. 64.
(a) When assessing the medical inadmissibility, medical and visa officers are required to examine each individual that comes before them in their "uniqueness", see Poste, supra at para. 55.
(d) The term "social services" in subparagraph 19(1)(a)(ii) includes special education, see Thangarajan v. Canada (Minister of Citizenship and Immigration), [1999] 4 F.C. 167 (C.A.).
(a) There have been conflicting decisions of the Trial Division on whether the wealth of an applicant is a relevant factor when assessing excessive demands on social services.
(i) In some cases the Court has stated it is a relevant factor, see Wong v. Canada (Minister of Immigration and Citizenship) (1998), 141 F.T.R. 62 at para. 29, Wong v. Canada (Minister of Immigration and Citizenship), 2002 FCT 625 at para. 21, and Hilewitz v. Canada (Minister of Citizenship and Immigration), 2002 FCT 844 at para. 15.
(ii) In other cases, the Court has stated that the applicant's wealth is not a relevant factor - as all permanent residents have the right to benefit from publicly funded social services regardless of personal assets or wealth, there is no basis for enforcing an
applicant's commitment to pay for social services provided to their dependent, see Choi v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 85 (F.C.T.D.), Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 86 (F.C.T.D.), Cabaldon v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 296 at para. 8, Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56 at paras. 18-19, and De Jong v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1165 at para. 17.
(b) The Federal Court of Appeal, when dealing with the relevance of wealth in assessing excessive demands on health services, recently stated that it is not possible to enforce an undertaking for payments of "any services required", see Deol v. Canada (Minister of Citizenship and Immigration), 215 D.L.R. (4th) 675, at para. 46. The Court does not appear to have distinguished health from social services and cited the Trial Division decisions in Choi, supra, Cabaldon, supra and Poon, supra as support for this proposition. Mr. Justice Gibson in Hilewitz, supra distinguished the case as applying solely to the demands on health services. Mr. Justice Pinard in De Jong, supra interpreted the decision as applying to cases involving demands on social services as well.
(c) The Trial Division has also been divided on whether a dependent will cause excessive demands for social services should be based on the legislation of a specific province.
(d) Justice Evans in Koudriachov v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 138 stated that a visa officer need not address the issues of family support or wealth unless evidence on these issues is put before him or her.
(a) The requirement for procedural fairness is met when a "fairness letter" (typically it is accompanied by the Medical Notification) is sent to the applicant, see Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413, 2001 FCA 345.
ANALYSIS
1. Role of the medical officer
[12] I am impressed with the manner in which the medical officer, Dr. Kerry Kennedy, conducted this assessment. He initially referred Francis to a child psychiatrist and a clinical psychologist. Upon reviewing these reports he determined that further evaluation was required and requested that Francis undergo a psychiatric re-assessment. With this information, Dr. Kennedy concluded that Francis suffered from mild to moderate mental retardation and outlined the social services required to deal with this condition. This opinion was referred to a second Canadian medical officer who concurred in Dr. Kennedy's medical diagnosis and his medical inadmissibility determination. I am satisfied that the medical officer has fulfilled the high onus of proof to show that Francis' condition would be expected to cause excessive demands on Canada's social services.
2. Child will require special education classes in Canada
[13] The evidence submitted by Francis' parents and his school in Karachi confirmed that Francis attends a special education class for mildly retarded children. The school confirmed that Francis would require special education classes in Canada.
[14] Similarly, the applicant submitted a report from the psycho-social center in Karachi which stated that Francis has an IQ of 55 and that he would require remedial coaching. Therefore, there is no question that Francis has mild to moderate mental retardation and that he will require special education classes in Canada on an immediate basis, and will require vocational training and sheltered workshops type of employment in the future.
3. Opinion of the medical officer
[15] The medical officer concluded that the services referred to above are expensive and of limited availability in some regions and that these requirements will place "excessive demands" on Canadian social services. " Excessive" is defined in the Canadian Oxford Dictionary (2001) as "more than what is normal or necessary".
[16] I am satisfied that the medical officer's opinion is reasonable. In his affidavit, at paragraph 34, he states:
The Ontario Ministry for Education and Training estimates that the cost of providing education to special needs children in Ontario is approximately double that of educating the average student; namely $8000 - $12000 per year, in contrast to $4000 - $6000 yearly cost of educating an average student. This child, now aged 9, would receive specialized education in Canada until age 21.
The medical officer further deposes (a) that Francis will need vocational training and possibly placement in sheltered workshop employment situations, (b) that such social services in Canada are limited to the extent that a child might not have access to these valuable social services when needed, and (c) that adult day programs stressing the development of life skills cost about $10,000 per year, with the average person spending around ten years in such a program.
Uniqueness
[17] The medical officer examined this case in its uniqueness. There was no dispute that Francis will require special education classes in Canada and that family support cannot provide these services.
Wealth or ability to pay
[18] With respect to wealth, the applicant did not put before the visa officer any proposal that the family would undertake to pay for any social services which Francis may require. The cases before this Court are divided on whether this is a relevant factor. In any event, it is clear that the applicant's wealth would not be sufficient to pay for the extra social services which Francis will require in his lifetime.
Procedural Fairness
[19] Counsel for the applicant submits the applicant's right to procedural fairness was violated because the fairness letter did not contain any of the medical information on which the medical officer's conclusion was based. Counsel argues that the letter did not contain sufficient information to allow the applicant to make a meaningful rebuttal.
[20] This issue was dealt with by the Federal Court of Appeal in Khan, supra. Justice Evans, writing for the Court, stated at para. 29:
[...] where an applicant is clearly advised of the medical diagnosis and prognosis, and of the services likely to be required, he or she effectively knows the grounds for the potential refusal and has the knowledge necessary to pursue the matter further. In these circumstances, the Minister is not normally obliged to disclose in the fairness letter the detail supporting the conclusion that a visa could be refused because admission of the person concerned is likely to cause excessive demands on medical or social services.
The letter and the Medical Notification provided the applicant with the medical diagnosis (mild to moderate retardation), prognosis (will require strong family and community support throughout his life), and services likely to be required (special education classes, vocational training and sheltered workshops type of employment). From the information contained in the Medical Notification, the applicant effectively knew the grounds for refusal and possessed all of the information necessary to make a meaningful rebuttal. Accordingly, there was no breach of the duty to act fairly.
PROPOSED QUESTION FOR CERTIFICATION
[21] Counsel for the applicant proposed the following question for certification: "Does the visa officer have a duty to superintend the medical officer to ensure that the medical officer had proper evidence before making an opinion?". The respondent opposed certification of this question. I am of the view that this question has already been answered by this Court in the affirmative, and in this case, the medical officer did have the proper evidence before rendering his opinion, so that this question is not dispostive of this application.
Page: 15
[22] For these reasons, this application for judicial review is dismissed and no question is certified.
(Signed) Michael A. Kelen _______________________________
JUDGE
OTTAWA, ONTARIO
DECEMBER 11, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5903-00
STYLE OF CAUSE: AUGUSTINE OLIVEIRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, NOVEMBER 28, 2002
REASONS FOR ORDER: KELEN J.
DATED: WEDNESDAY, DECEMBER 11, 2002
APPEARANCES BY: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. Martin Anderson
Ms. Alexis Singer
For the Respondent
SOLICITORS OF RECORD: Mr. Cecil L. Rotenberg, Q.C.
Barrister and Solicitor
255 Duncan Mill Road
Suite 808
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20021211
Docket: IMM-5903-00
BETWEEN:
AUGUSTINE OLIVEIRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER