Date: 20020531
Docket: IMM-6060-99
OTTAWA, ONTARIO, THIS 31ST DAY OF MAY, 2002
Present: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
CHING SHIN HENRY WONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is granted. The decision of the visa officer dated November 18, 1999, is quashed. The matter is returned to a different visa officer for reconsideration in a manner not inconsistent with these reasons.
No question will be certified.
"W.P. McKeown"
JUDGE
Date: 20020531
Docket: IMM-6060-99
Neutral citation: 2002 FCT 625
BETWEEN:
CHING SHIN HENRY WONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
The applicant seeks judicial review of a decision of the visa officer dated November 18, 1999 wherein the applicant's application for permanent residence in Canada was refused.
The first issue is whether the visa officer erred in failing to consider the applicant's daughter in her "uniqueness" with respect to social services pursuant to paragraph 19(1)(a)(ii) of the Immigration Act. The second issue is whether the visa officer processed this case in compliance with the order and reasons of Reed J. in IMM-3366-96.
Facts:
The applicant's daughter was born in April 1981 and suffers from mild to moderate mental retardation and Down's Syndrome. The applicant has submitted two prior applications for permanent residence, both of which were refused. The first application in March 1994 was refused on the grounds that the daughter was medically inadmissible. The applicant and his daughter came to Canada in October 1994 to have the daughter's condition assessed by Dr. Ford of Toronto. He concluded that the daughter "does not present as an individual whose needs would place excessive demands on available social services in Canada".
The applicant resubmitted his application in December 1994 and this application was refused in August 1996 because, in the opinion of two medical officers, her admission would or might reasonably cause excessive demands on social services in Canada.
On the application for judicial review of the August 1996 decision, Reed J. allowed the application finding that there was a breach of procedural fairness as a result of the applicant not being given answers to the questions he had posed about the doctor's opinion that his daughter's admission to Canada would place "excessive demands" on Canadian social services. Reed J. stated at paragraph 26:
Most significant is the non-disclosure to the applicant of information concerning the basis on which the opinion was rendered. The applicant and his counsel wished to respond to the conclusion that admission of the daughter to Canada would as a result of her medical condition, cause excessive demands on social services. In order to do this in an intelligent way they needed to know what factors were considered relevant. In my view, the non-disclosure of the requested information constituted a breach of natural justice, is a breach of the rules of fairness.
Reed J. also noted that under Ontario's Developmental Services Act, Canadian residents who are able to do so are required to pay for the social services that are in question. She also commented in obiter on the need to consider an individual's particular circumstances. At paragraph 31 she states:
Having come to this conclusion, it is not, strictly speaking, necessary to consider the other issues that counsel raised. I do note, however, that under subparagraph 19(1)(a)(ii), it is the admission of the individual that is to be assessed in determining whether excessive demands would be or might reasonably be expected to arise. I read that provision as requiring a consideration of the individual's particular circumstances, including in this case the applicant's offer to set up a trust fund.
Counsel for the respondent argues that individual circumstances (particularly above average financial resources) should not be taken into account when assessing medical inadmissibility because our medical and social services are predicated on the principle that all individuals are equally entitled, and that advantages should not accrue in these areas to some individuals simply because they are wealthier than others. The force of that argument is strong. However, the category under which the applicant has been approved for permanent residence status is the self-employed category, that is, he has been approved because of his financial resources and entrepreneurial experience. There does seem to be an incongruity between admitting someone as a permanent resident because he has significant financial resources but refusing to take into account those same resources when assessing the admissibility of a dependent. This is particularly true if Canadian residents themselves must pay for the social services if they can afford to do so.
On June 16, 1998, the officer wrote to applicant's counsel, providing him with a copy of the new medical notification prepared in May and co-signed in June. She invited him to respond within thirty days, with any relevant materials, submissions or questions he may have.
By letter dated June 19, 1998, counsel for the respondent repeated to applicant's counsel the assurance that all the questions he has posed regarding the manner by which medical officers reached their conclusions in this case, would be forwarded on to the medical officers for their reply before any final medical opinion was reached.
In September 1998, applicant's counsel filed and served a motion in this Court, alleging that the respondent was processing the case in violation of the Order and Reasons of Reed J. Reed J. did not find any fault with the respondent's re-processing of the case, but did require that the re-processing medical officers answer all of applicant's counsel's previously posed questions not later than January 4, 1999.
By letter dated December 31, 1998, Dr. G. Giovinazzo sent a detailed 16 page letter to applicant's counsel, formulating and answering all of the questions and issues which had been raised by him in all his previous correspondence to both the visa officer and the doctors in connection with this case. Dr. Giovinazzo provided Mr. Rotenberg with an overview of the conditions of mental retardation and explained in great detail the exact social services which persons with this condition most commonly utilize, and which skills those social services are directed at developing and improving. Dr. Giovinazzo then addressed 9 specific questions and issues which had been posed previously by Mr. Rotenberg, explaining how each issue was considered on the facts of the applicant's daughter's own case.
However, Dr. Giovinazzo does not address what specific services may be needed and for how long. There is also not a lengthy examination of the probability of the need of such services.
The Applicant's counsel then filed a second motion in April 1999, alleging again that the respondent was re-processing the case in violation of the Order of Reed J. He asked that an order be issued that the medical officers had refused to consider the applicant's daughter's "unique situation", and for that reason the Court should further order that a decision be rendered without regard to the possibility of the daughter creating excessive demands on Canadian social services. Reed J. dismissed the motion, stating:
I am not persuaded that the amendment can be granted. It may very well be that the respondent will issue a second refusal letter, taking the same position as that taken earlier, and the applicant will again find it necessary to commence an application to challenge the validity of the second decision. I agree that this is an unfortunate circumstance but it is not uncommon in judicial review proceedings where the reviewing Court does not have jurisdiction to substitute its decision for that of the decision maker whose decision is being reviewed.
After this motion was dismissed, applicant's counsel wrote to Dr. Giovinazzo on July 6, 1999, stating that his response to the doctor's letter of December 31, 1998, was forthcoming.
On July 13, 1999, applicant's counsel wrote to the visa officer providing his response to Dr. Giovinazzo's letter of December 1998. He indicated that he did not agree with the answers given to his questions, citing Federal Court cases which he preferred over the Federal Court cases discussed by Dr. Giovinazzo.
By letter dated November 18, 1999, the visa officer wrote to applicant's counsel, telling him that his most recent letter had been considered by the medical officers but had not changed their conclusions expressed in the most recent "Medical Notification" of July 1998. The officer concluded the re-processing of the applicant's application, by finding the applicant's daughter's admission to Canada would result in excessive demands being placed on Canadian social services, rendering the family inadmissible pursuant to s. 19(1)(a)(ii) of the Immigration Act. This decision is the subject of this application.
The decision letter states:
Mr. Wong's dependent daughter, Kar Yei comes within the inadmissable class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act. Ms. Wong has been found to suffer from mental retardation which has been assessed as mild to moderate and in the developmentally trainable range. She has required special education classes in the past with no change in this requirement expected. While she is capable of personal self-care, most of her cognitive functioning is estimated no greater than that of a six year old. Her most severe functional impairment appears to be in communication with a noted language delay. Although capable of simple tasks in a controlled environment, she requires and is expected to require some level of assistance and supervision indefinitely. Even with further occupational training, it is reasonable to assume that her occupations at best and that remuneration from her occupation will be inadequate for functional economic self sufficiency. The applicant will likely remain in a dependancy position indefinitely. If landed, she and her family will be entitled to and will likely require a variety of supports. The supports would include supports for intellectual functioning and adaptive skills. In particular, training and support will be needed for communication, home-living, community use skills, self-direction, health and safety issues, functional academics, leisure activities and occupational self-acquisition. The requirement for these support structures will likely create an excessive demand on Canadian social services making this applicant inadmissable under Section 19(1)(a)(ii) of the Immigration Act.
In December 1999 the applicant then filed a motion requesting Reed J. to find that the officer had failed to abide by the prior order of Reed J. On January 11, 2000, Reed J. dismissed the motion, commenting that the proper procedure by which to challenge the decision was by way of the judicial review application already commenced.
Analysis:
Section 19(1)(a)(ii) of the Immigration Act provides 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;
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
a) celles qui souffrent d'une maladie ou d'une invalidité don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't l'avis est confirmé par au moins un autre médecin agréé, conclut_:
...
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
In Deol v. MEI [1992] 18 Imm. L.R. (2d) 1 (F.C.A.), MacGuigan J. held that the fact of mental retardation alone is not the relevant factor but the degree and probable consequences of that degree of retardation for excessive demands on government services. Also, in Ismali v. MCI [1995] 29 Imm. L.R. (2d) 1, Cullen J. considered the social services in the particular region of Canada where the applicant wished to settle. Cullen J. in that case also stated that:
The visa officer - wholly apart from the decision of the medical officers - is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second guessing the medical, diagnostic opinion, must consider all of the available evidence.
Furthermore, in Poste v. MCI [1995] F.C.J. No. 1805 (T.D.) Cullen J. held that each and every applicant should be looked at in their "uniqueness".
The applicant submits that family support ought to be considered, but that it was not considered in this case. Allegedly the medical officers based their opinion on eligibility for services alone and there is wording in the medical notification and refusal letter such as "eligible for ¼ services"and "likely to require ¼ services". The applicant submits that without a reasonably direct inquiry as to family support and the intentions of the applicant vis-à-vis his dependents, no intelligent answer can be made to the statement "likely to require". In this case, the applicant made it very clear that there would be no community involvement in the care of his daughter.
In my view the respondent did not err in failing to consider family support. Dr. Giovinazzo specifically explains in his December 31, 1998 letter that they were aware of the family support for the daughter in this case. Notwithstanding this support, however, the officers were of the opinion that social services outside the home would be required to assist the individual to be more independent and learn to interact with others. The letter also clearly indicates that the daughter's specific circumstances were taken into account.
The health services that the daughter may require is not at issue in the case before me. With respect to social services, one has to be considered eligible, and such application entails consideration of "whether the applicant is able to contribute to all or any part of the cost thereof" (Developmental Services Act R.S.O. 1990, c. D.11 and the General Regulation, R.R.O. 1990 Reg. 272.; Education Act R.S.O. 1990, c. E2). Thus, the applicant will likely be required to pay for any services used because he has the means to do so. Thus no demands will be caused by the admission of the applicant with respect to social services.
The jurisprudence is split on the question of whether the wealth of the applicant should be taken into account in assessing excessive demands on social services. While in Ching Ho Poon v. MCI [2000] F.C.J. No 1993 (T.D.) Pelletier J. found that wealth was not relevant, in my view the better approach was that taken by Reed J. in the earlier Wong decision when she found that it would be incongruous to admit somebody as a permanent resident because he has significant financial resources but then refuse to take into account these same resources when assessing the admissibility of the dependant. This approach would not be applicable in the case of medical services but it is applicable with respect to social services.
The respondent takes the view that the applicant is free to move around within Canada and, therefore, the services in North York and Ontario should not be considered. However, I agree with Cullen J. in Poste, at paragraph 55 where he stated:
It is insufficient for a medical officer to give an opinion on such demands in general; the opinion must be founded firmly on the individual's personal circumstances and all the circumstances of the case. These would include the degree of family support and commitment to the individual, and the particular resources of the community. While a particular individual may cause excessive demands in one situation, in a different setting, the same individual may cause minimal or no demands at all. Medical officers must address themselves to the particular circumstances of the individual. Otherwise, cogent evidence is ignored, and opinions regarding demands on social services become unfounded and cannot be upheld by this Court.
There was evidence before the officer that there was no shortage of services in North York for children with special needs. When I looked at this child in her "uniqueness", it is clear that this family is not likely to relegate their daughter to a home. Furthermore, with respect to schooling, given her current age, the government of Ontario would at most have an obligation to provide schooling to her for only one year. Further, the visa officer in this case referred to a number of social services which do not appear anywhere in the evidence before her. In particular, the refusal letter stated that "training and support will be needed for communication, home-living, community use skills, self-direction, health and safety issues, functional academics, leisure activities and occupational self-acquisition." The officer assumes that such services are available, that they are provided free of charge or that there is a shortage of these services. Further, the officer based the refusal upon an assumption that the applicant's dependent will be eligible for such services to be provided to her free of charge despite the provision in the Developmental Services Act and the Education Act for contribution from parents or from her trust fund. The officer also assumes that the daughter will likely use these services, even though the evidence before her indicated that she would not.
In my view Cullen J. has correctly set out the law in this respect, even though immigrants have the freedom to choose both their settlement location and can thereafter change the location. I also acknowledge that the government in the past has attempted to obtain information on the availability and cost of services in a specific locality and found that such information is not currently collected or available. However, I do not agree with the respondent that all that is required to form a legitimate opinion pursuant to s. 19(1)(a)(ii) of the Immigration Act is: a) an accurate and specific diagnosis of the medical condition; b) an evaluation of what services will be required to manage, improve or cure that condition, and c) an evaluation of whether those services, required by the condition, would require an "excessive" or "more than normal" demand on those services in Canada.
In the case before me the officers identified the medical condition and then identified a broad range of social services which normally would be made available and would benefit her. The officers held such service to be more than the normal services utilized and therefore excessive. However, the response of Dr. Giovinazzo and the decision letter of the officer do not indicate that there was any consideration of which specific services would be available in the particular community in which the applicant chose to settle. In my view it is important to note that we are talking about the social services here and not medical services. In Canada one is not permitted to obtain medical services on a private basis. However, there is no such restriction in the social services and as was shown by Ontario's Development Services Act, persons who can afford to pay for social services must pay for them. Accordingly, since there is no evidence before me that the medical officers or the visa officer considered the specific services available in the particular community where the applicant chose to reside, this constitutes a reviewable error.
In light of my finding above, it is not necessary to consider in detail whether the respondent's reprocessing of this case was in compliance with the order and reasons of Reed J. In my view there was no breach of the duty of fairness. The respondent provided a very detailed response to the questions posed by the applicant and considered the applicant's reply before making the final decision. Therefore, the order and reasons of Reed J. were complied with by the respondent.
The application for judicial review is granted. The decision of the visa officer dated November 18, 1999, is quashed. The matter is returned to a different visa officer for reconsideration in a manner not inconsistent with these reasons.
The applicant proposed six questions for certification. The respondent submitted that none of the six questions should be certified primarily because they are based on the facts of this particular case. In my view there is no question of general public importance to be certified under these circumstances.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
May 31, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6060-99
STYLE OF CAUSE:CHING SHIN HENRY WONG v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 30, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE McKEOWN
DATED: May 31, 2002
APPEARANCES:
Mr. Cecil Rotenberg FOR THE APPLICANT
Ms. Marie-Louise Wcislo FOR THE RESPONDENT
SOLICITORS OF RECORD:
Cecil Rotenberg FOR THE APPLICANT
Toronto, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada