IMM-2565-96
B E T W E E N:
KWAN WAH TONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HEALD, D.J.:
This is an application for judicial review which seeks to challenge the continued processing by the office of the Canadian Consulate General in Buffalo, New York of the applicant's application for permanent residence. No final decision has been made on this application because no final medical opinion on the applicant's condition has been rendered. The applicant seeks a declaratory order:
| (a) That the Minister release the applicant's entire medical file to the applicant; |
| (b) That the Minister refrain from rendering a final decision on the applicant's application for permanent residence in Canada until 3 months after the applicant receives the certified medical file; and |
| (c) That the visa officer cannot fulfill his duties as a visa officer in cases involving a potential refusal based on a medical condition without a complete copy of the medical file. |
Factual Background
The within application for permanent residence was submitted to the Canadian Consul General in Buffalo on November 17, 1994. On February 16, 1995, the Minister issued medical instructions to the applicant. The applicant was informed that a personal interview would not be necessary. The applicant completed the medical instructions on March 22, 1995. On June 30, 1995, the Minister requested the applicant and his wife to take a "sealed envelope" to the examining physician who was to perform additional medical tests. On September 20, 1995, the applicant was again instructed to take yet another sealed envelope to the physician so that he could perform more medical tests.
The medical examinations disclosed that the applicant suffers from chronic active hepatitis resulting in fibrosis of the liver and abnormal liver functions. In January of 1996, the Vice-Consul received the opinion of two medical officers. It was their conclusion that the applicant is medically inadmissible to Canada pursuant to the provisions of section 19(1)(a)(ii) of the Immigration Act. By letter dated February 13, 1996, the Vice-Consul advised the applicant of this finding. The applicant was given 60 days from the date of the letter within which to provide any new medical information and/or submissions in response.
By letters dated February 26 and March 18, 1996, the applicant's solicitor requested that he be provided with a copy of the applicant's medical records. By letters dated April 12 and May 15, 1996, the Vice-Consul advised the applicant that he was unable to provide the medical file to him. He suggested that the applicant direct his request to Immigration Medical Services in Ottawa. In the letter of May 15th, the applicant's deadline for making submissions relative to his medical condition was extended to June 10, 1996. The within application for judicial review was filed on July 29, 1996. For the purposes of this application, the respondent Minister refused to disclose the applicant's medical file.
Issues
1. Is a visa officer able to perform his or her duties in assessing an applicant for permanent residence if that officer does not have access to the complete medical file of an applicant in respect of whom it is alleged that a medical condition exists which might result in the refusal of the application for permanent residence?
2. Is an applicant denied procedural fairness when the Minister denies him access to his complete medical file for the purpose of responding to the assessment of the medical officers?
Analysis
1. The duty of the Visa Officer
The applicant submits that since the visa officer was not in possession of the medical file, he should have made an attempt to obtain it. It is the applicant's view that the visa officer had a duty to consider all of the available relevant evidence and that he should have tried to obtain the medical file. The applicant relies on the decision of Cullen J. in Ismaili v. M.C.I.1, where it was stated: "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."
I had occasion to deal with this issue in a recent decision2. One of the issues in Fei was whether a visa officer is under a duty to request and obtain the information necessary to confirm the reasonableness of the opinion of the medical officer. After a review of the authorities I concluded that Parliament has placed the decision-making authority for medical inadmissibility in the hands of medical officers. Once the medical officer forms an opinion, the visa officer has no authority to alter that opinion which is binding upon him. On this basis, I came to the further conclusion that it was not necessary for the visa officer to review the medical file. Accordingly, I am unable to agree with this submission.
2. Procedural Fairness
The applicant submits that the Vice-Consul's letter only identifies his medical condition. There were no details as to the ratio for the conclusion of the medical officers. In the applicant's view this constitute a denial of procedural fairness because he is unable to respond to a generalized statement of the existence of a medical condition without being provided particulars of that condition.
I am unable to agree with this submission. This applicant was given a full opportunity to respond to the medical assessment. He was allowed four months to respond. In the notification given, the substance of the adverse opinion concerning his medical condition was disclosed. In my view, these circumstances satisfy the test enunciated by Lord Loreburn L.C. in Board of Education v. Rice3, where he stated: "They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."
Conclusion
For the foregoing reasons, the within application for judicial review is dismissed.
Certification
Counsel for the applicant submitted two questions for certification pursuant to section 83 of the Immigration Act. Counsel for the respondent opposed this request on the basis that existing jurisprudence answers most of the questions posed. Counsel was also of the view that at least some of the questions do not pose questions of general importance. I agree. Accordingly, no questions will be certified.
"Darrel V. Heald"
D.J.
Toronto, Ontario
October 31, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2565-96
STYLE OF CAUSE: KWAN WAH TONG
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: OCTOBER 30, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D.J.
DATED: OCTOBER 31, 1997
APPEARANCES:
Mr. Cecil L. Rotenberg, Q.C.
Ms. Mary Lam
For the Applicant
Ms. Marie-Louise Wcislo
For the Respondent
SOLICITORS OF RECORD:
United Centre
808-255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Court No.: IMM-2565-96
Between:
KWAN WAH TONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
__________________
1 (1995), 22 Imm. L.R. (2d) 1.
2 See Fei v. Canada (Minister of Citizenship and Immigration) IMM-741-96, June 30, 1997.
3 [1911] A.C. 179 at p. 182.