Date: 19991129
Docket: IMM-4576-98
BETWEEN:
RICARDO PABLO RABÀNG, MARIA DORIE RABANG and PATRICK RABANG by his Litigation Guardian, RICARDO PABLO RABANG
Applicants
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.
[1] Mr. and Mrs. Rabang and their son Patrick, now fourteen, applied for landing in Canada in June of 1995. Their application was rejected by a visa officer on July 29, 1998 on the basis that Patrick is not medically admissible. The applicants seek judicial review of that decision.
[2] Patrick is generally healthy but has cerebral palsy, a condition that has caused his mental, motor and social development to be delayed. He is also subject to seizures. Patrick has improved with therapy and is likely to continue to improve. However, because of his
Page: 2 condition, Patrick requires and will continue to require medication for his seizures, semi
annual neurological assessments, and special education.
[3] The evidence before me in this application for judicial review consists of an affidavit submitted on behalf of the applicants, the visa officer's record and the medical officer's record. No affidavit has been submitted by the visa officer or the medical officer.
[4] The legal basis for the visa officer's refusal to admit Patrick is subparagraph 19(1)(a)(ii) of the Immigration Act, the relevant portion of which reads as follows:
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.
In concluding that subparagraph 19(1)(a)(ii) applies to Patrick, the visa officer relied on a document entitled "Medical Notification". The Medical Notification states the opinion of the medical officer dated March 26, 1997, which tracks the language of subparagraph
19(1)(a)(ii), and the concurrence of a second medical officer dated June 20, 1997.
Page: 3
[6] The opinion is followed by a section called the "medical profile". It consists of a
number of codes, based on the classification system found under the heading "Outline of
Basic Medical Criteria" in the Immigration Manual. Next on the Medical Notification form is
the diagnosis, which in Patrick's case is developmental delay with cerebral palsy. It is not
disputed that this diagnosis is correct. Finally, the Medical Notification form includes a
narrative which reads as follows:
THIS 11 YEAR OLD DEPENDENT BOY HAD CEREBRAL PALSY FROM BIRTH WITH CONCOMITANT PSYCHOMOTOR DEVELOPMENTAL DELAY AND SEIZURES. HE IS CURRENTLY ATTENDING A SPECIAL SCHOOL FOR CEREBRAL PALSY STUDENTS. HE HAS SPASTIC DIPLEGIA, PLANTAR FLEXION CONTRACTURES, AUTISM, DELAYED SPEECH AND ATTENTION DEFICIT DISORDER. HE REQUIRES ASSISTANCE IN THE ACTIVITIES OF DAILY LIVING INCLUDING WASHING AND DRESSING. HE REQUIRES ONGOING SPECIAL EDUCATION, PHYSICAL THERAPY, OCCUPATIQNAL THEREAPY, AND SPEECH THERAPY, AS WELL AS ONGOING SPECIALIST CARE. HE IS UNLIKELY TO BE EMPLOYABLE IN THE OPEN CANADIAN JOB MARKET.
HIS ADMISSION TO CANADA IS REASONABLY EXPECTED TO PLACE AN EXCESSIVE DEMAND ON HEALTH AND SOCIAL SERVICES AND HE IS INADMISSIBLE AS SECTION 19 1 a ü OF THE IMMIGRATION ACT APPLIES.
Patrick was two months short of his twelfth birthday when he was examined by a
physician for the purposes of the medical officer's opinion. He is now fourteen.
[8] The opinion of the medical officer, as expressed in the Medical Notification, is based on a number of documents about Patrick, including a report by a physician who examined Patrick in the Phillipines on July 23, 1996, a medical certificate dated February 21, 1997 from a neurologist in the Phillipines who cared for Patrick from a very early age, a medical certificate dated February 17, 1997 from the rehabilitation centre in the Phillipines where
Page: 4 Patrick has received therapy since 1990, a pediatric developmental evaluation dated February 21 and 24, 1997, a physical therapy evaluation dated February 19, 1997, a report dated February 18, 1997 from the special education department of the school Patrick attends in the Phillipines, a progress report dated February 18, 1997 from the rehabilitation centre, and an undated report from the speech and language department of the rehabilitation centre setting out a program for Patrick's family to follow at home to assist in his development.
[9] As well, it appears that consideration was given to the medical file created for Patrick with respect to a prior application for landing, which had been refused in 1991.
[10] In a letter dated May 25, 1997, the visa officer advised the applicants of the contents
of the narrative portion of the Medical Notification and then said:
This information leads me to conclude that your dependent, Patrick Rabang, can be expected to cause excessive demands on health or social services in Canada. For this reason, I could refuse your application for permanent residence.
Before I make a decision whether your dependent is inadmissible, you may respond to the description of your dependent's medical condition with new medical information of your own.
[11] It is not clear why this letter was sent before the second medical officer indicated his concurrence with the opinion of the first medical officer. In any event, counsel for the applicants responded with a written submission dated June 22, 1997 dealing with some of the
Page: 5 issues. She enclosed a social evaluation report dated May 28, 1997 by Celestine Chan-Liu, M.S.W. and letters of support from family members in Canada.
[12] Apparently that additional material was reviewed by the first medical officer, who affirmed his opinion. It appears that the second medical officer who had concurred in the original opinion was not available, but a third medical officer reviewed the opinion and the additional material and expressed concurrence.
[13] One legal issue raised in this application is whether special education is a "health or social service" within the meaning of subparagraph 19(1)(a)(ii). The answer is yes, according to Canada(Minister of Citizenship and _Immigration) v. Thangarajan, [1999] 4 F.C. 167 (C.A.). As that decision is binding on me, the issue was not the subject of oral argument at the hearing. However, counsel for the applicants indicated that she is not abandoning the argument because, as counsel in the Thangarajan case, she may be seeking leave to appeal the Thangarajan decision to the Supreme Court of Canada.
[14] The evidence in the medical record supports the medical officer's opinion in so far as it relates to Patrick's condition and his probable need for future medical attention, therapy and special education. However, with one minor exception (discussed in the next paragraph), there is no evidence as to what I call the non-medical aspects of the opinion, namely the availability, scarcity or cost of the publicly funded health or social services that Patrick is likely to require. No attempt has been made to fill this evidentiary gap with an affidavit. As
Page: 6 a result, it is impossible to assess the reasonableness of the medical officer's opinion that Patrick's needs can reasonably be expected to place an excessive demand on health and social services in Canada.
[15] The one exception is evidence that Patrick's special educational needs would be publicly funded in Canada. The report of Ms. Chan-Liu, submitted on behalf of the applicants, indicates that special education programs provided within the public school system would be appropriate for Patrick and available to him. Thus, the medical officer had an evidentiary basis for concluding that Patrick's special educational needs would be publicly funded. However, Ms. Chan-Liu says nothing of the cost or scarcity of those special educational services.
[16] Similarly, Ms. Chan-Liu says that Patrick will require the services of a physical therapist, a speech therapist and a social worker, and that such services are available through the Surrey Place Centre in Toronto. But she does not say whether those services are or are likely to be publicly funded in Patrick's case. Nor does she comment on the scarcity or cost of any of those services.
[17] It was argued at the hearing that I ought to presume that the non-medical aspects of
the opinion were based on the medical officer's special knowledge or expertise. I cannot make any such presumption. This Court has said many times that a medical officer is not
entitled to presume that a particular medical condition or disability must necessarily result in
Page: 7 excessive demand: Deol v. Canada(Minister of Employment and Immigration) (1992), 145 N.R. 156 (F.C.A.); Jiwanpuri v. Canada(Minister of Employment and Immigration) (1990), 109 N.R. 293 (F.C.A.); Ismaili v. Canada(Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.); Litt v. Canada(Minister of Citizenship and Immigration) (1995), 26 Imm. L.R. (2d) 153 (F.C.T.D.).
[18] This Court has also said many times that a medical officer's opinion on the question of excessive demand is subject to judicial review and must be justified when challenged. A medical opinion without an evidentiary foundation cannot be justified: Mohamed v. Canada (Minister of Employment and Immigration) [1986] 3 F.C. 90 (C.A.); Ahir v. Canada (Minister of Employment and Immigration), [1984] 1 F.C. 1098 (C.A.); Ma v. v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (T.D.); Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.); Fong v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 235 (T.D.); Gao v. Canada (Minister of Employment & Immigration) (1993), 61 F.T.R. 65 (T.D.).
[19] It was argued for the Minister that to hold medical officers to this standard would impose an undue administrative burden. I do not accept that argument. A medical officer has a legal obligation to render an opinion on a number of factual questions based on evidence. It is not asking too much to require that such evidence be described by the medical officer in response to an application for judicial review.
Page: 8 [20] In this Court, evidence of social cost has been adduced in a number of cases to justify a medical officer's opinion as to excessive demand. I refer, for example, to Ma, supra, Mendoza v. Canada (Minister of Citizenship and Immigration), IMM-288-99 (October 29, 1999) (F.C.T.D.), and the proceedings in the Trial Division in Thangarajan, supra (reported at (1998) 152 F.T.R. 91) and the companion case, Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (both affirmed by the Federal Court of Appeal on June 24, 1999).
[21] It was also argued for the Minister that the onus is on the applicants to satisfy the medical officer that Patrick's demands on publicly funded health and social services would not be excessive, and they failed to provide any evidence in that regard. That argument does not address the fundamental problem in this case. The problem is that the record discloses no evidence at all on the critical question of excessive demand.
[22] It follows that the decision of the visa officer must be quashed. The applications for landing are to be referred for reconsideration by a different visa officer and by two different medical officers.
Karen R. Sharlow
Ottawa, Ontario November 29, 1999
Juage
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4576-98
STYLE OF CAUSE: Ricardo Pablo Rabang et al. v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: November 5, 1999
REASONS FOR ORDER OF THE HONOURABLE MADAME JUSTICE SHARLOW DATED: November 29, 1999
APPEARANCES:
Ms. Barbara Jackman FOR THE APPLICANTS
Ms. Marianne Zoric FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Ms. Barbara Jackman FOR THE APPLICANTS Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada