Date: 19980114
Docket: IMM-3366-96
BETWEEN:
CHING SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks to have a decision of a visa officer, dated August 19, 1996, set aside. That decision denied his application for permanent residence because a dependent, his daughter, was mentally retarded. In the opinion of two medical officers, the specialized educational services and vocational training she would require, if admitted to Canada, would cause or might reasonably be expected to cause excessive demands on social services in Canada.
[2] Subsection 19(1) of the Immigration Act, R.S.C. 1985, c. I-2, states:
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) ... |
| (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 invalitidé 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) ...
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
(underlining added)
[3] In September 1992, the applicant applied from Hong Kong for permanent residence in Canada under the self-employed category. The application was refused in March, 1994, because his daughter, Kar Yei, was born with Down's syndrome and was determined to be inadmissible.
[4] In December 1994, the applicant reapplied through the Buffalo, New York, U.S., office. He applied for landing on behalf of himself and his three dependants: his wife, his daughter and his son. His son has been studying in Canada as a visa student since 1993.
[5] The applicant had his daughter medically assessed, in Canada, by Dr. Ford. Dr. Ford's opinion was that Kar Yei did not require any intensive supervision either from her family or from the community but that she should have a learning environment appropriate for her needs. He concluded that she would not impose excessive demands on available social services in Canada. This report was submitted in support of the applicant's December 1994 application.
[6] On March 24, 1995 Dr. Gabriel Chung, a designated medical practitioner, examined Kar Yei in Hong Kong. Designated medical practitioners are chosen by the Department of Citizenship and Immigration to provide medical examinations for Canadian immigration purposes to that Department. Dr. Chung's report stated that Kar Yei had genetic or familial disorders and had been diagnosed at birth as having Down's Syndrome. It was noted that she had attended special school since age 6 and was capable of self-care. Her speech was "somewhat inarticulate".
[7] A report of a clinical psychologist, Mrs. Chung, was subsequently submitted under cover of a letter from Dr. Gabriel Chung, dated July 9, 1995. It concluded that Kar Yei had a social age of 7.6 and an IQ of 45. It recommended that she should remain in special education and perhaps have a sheltered workshop placement after leaving school. Mrs. Chung noted that Kar Yei's family had pledged full financial and social support to her so that no institutional care would be required at any time.
[8] On August 10, 1995, the applicant was interviewed, in Detroit, by a visa officer. She determined that the applicant qualified as a landed immigrant under the self-employed criteria. The applicant operates a manufacturing business in Hong Kong that exports and sells products into North America. In 1994 his sales into Canada were in excess of Cdn $900,000 per month. He has a personal net worth of over Cdn $3 million. He purchased property in British Columbia before applying for landed immigrant status. The visa officer found that the applicant had successfully owned and operated businesses in Hong Kong and that he would have the ability to establish a business in Canada that would be of benefit to the Canadian economy.
[9] The visa officer found the applicant and his wife to be exceptional parents with respect to their care and involvement with their daughter. She performs exceedingly well in sports and musical activities. She had participated and been a prize winner in the Special Olympics. She had participated in and won prizes at music and dance festivals. Counsel's letter, the previous December, written on behalf of his client had stated that:
| ... he has the resources and ability to ensure the best care possible to his daughter, at his own expense in the future. Mr. Wong will also set up a trust fund for his daughter, at this time, if required. |
[10] At the time of the August 10, 1995 interview, the extent to which a visa officer was entitled to review an opinion expressed by medical officers for subsection 19(1) purposes was not entirely clear. The decision in Ismali v. Minister of Citizenship and Immigration (IMM-3430-94, August 17, 1995) had recently been rendered. Since that date the decision in Wan Chen Fei v. The Minister of Citizenship and Immigration (IMM-741-96, June 30, 1997) has been rendered. The latter reviewed the jurisprudence and concluded that the visa officer did not have a general power to review a subsection 19(1) decision for unreasonableness, but such review was within the Court's jurisdiction on judicial review:
| ... when a valid medical opinion is formed under subparagraph 19(1)(a)(ii), that opinion is binding on the visa officer. However, where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice, an error of jurisdiction is involved. It cannot be said to be a valid opinion under subparagraph 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and his or her decision may be reviewed in this court on that basis. It should also be noted that there is at present no impediment to an affected individual seeking judicial review of the medical opinion itself. |
[11] The visa officer in this case clearly understood that she had a responsibility to check the medical officer's opinion with respect to obvious errors on its face, as the Wan Chen Fei decision indicates. She did not consider, however, it to be her responsibility to review that opinion on the merits, either with respect to the medical diagnosis or the opinion that the applicant's admission would cause excessive demand on Canadian social services. Nor did she consider it her responsibility to forward to the medical officers all information she received concerning the applicant and his dependents. For example, in March of 1995 a letter was sent to the visa officer, by counsel, from the North York Board of Education, stating that there was rarely a waiting list for special education classes in that community. This was the location to which the applicant intended to locate. The letter was never forwarded to the medical officers.
[12] An initial medical notification was signed by medical officers employed by the Department of Citizenship and Immigration (Drs. Beltran and Cooper) on August 24, 1995. It stated that Kar Yei was medically inadmissible to Canada due to a reasonable expectation that her admission would cause excessive demand on Canadian social services. This decision was not communicated to the applicant or his counsel. There appears to have been a letter, dated December 4, 1995, drafted by the visa officer for the purpose of informing the applicant and his counsel of the August decision, and inviting them to respond to it with additional information if they so wished. However, there is no signed copy of this letter on the respondent's file and neither the applicant nor counsel received such letter.
[13] Counsel for the applicant wrote on October 13, 1995, and again on March 4, 1996, and May 23, 1996, expressing dissatisfaction with the length of time it was taking to process the applicant's application. Finally, on June 3, 1996, he filed an originating notice of motion on behalf of his client for an order of mandamus to require the processing of that application.
[14] The visa officer in Detroit was informed, on June 12, 1996, by the Citizenship and Immigration Ottawa office that a medical notification, signed on May 28, 1996, was available in the computer system. By May 28, 1996, Dr. Cooper was no longer employed by the Department of Citizenship and Immigration, and the medical notification had been signed by Drs. Beltran and Bernstein.
[15] On June 14, 1996 the visa officer sent a letter to counsel for the applicant informing him of the medical notification and advising him that additional medical information could be submitted in response through the designated doctor that had originally examined Kar Yei, that is Dr. Chung in Hong Kong. The applicant was given until August 15, 1996, to respond.
[16] On June 28, 1996, the visa officer received an actual copy of the medical notification of May 28, 1996. She forwarded this to the applicant's counsel.
[17] Counsel for the applicant took the position that the applicant was unable to respond to the June 14, 1996 letter by the August 15, 1996 date. Counsel was concerned that it was unethical for him to communicate with the visa officer because they were now involved in litigation (the mandamus application). More importantly, in the fax of August 14, 1996, counsel pointed out that he had not received information that he considered necessary in order to respond to the notification. He had requested this information earlier. He sought information concerning: (a) the time frame used by the medical officers in rendering their opinion (how many years forward form part of the assessment); (b) whether the medical officers were assessing demand by reference to an across Canada average, or by reference to the location in which the individual intended to locate; (c) the basis on which the costs of services are estimated; (d) whether costs were estimated by reference to the individual applicant's particular situation or by reference to some general average estimate; (e) whether any costs associated with home care had been included in the analysis of the applicant's daughter's situation?
[18] In any event, since no additional medical information was received in response to the June 14, 1996 letter, a letter dated August 19, 1996, was sent by the visa officer advising the applicant that his application had been refused. The applicant was advised that in the opinion of two medical officers, Kar Yei's level of assessed retardation was such that she was developmentally trainable, and thus would be eligible for and require special social services such as specialized educational services and vocational training if granted landing. Such services being in high demand, short supply and costly, her admission to Canada could reasonably be expected to create excessive demand.
[19] While not informed of the basis of the opinion before the decision was taken, information as to that basis was provided for the purposes of this application. Dr. Bernstein explained in his affidavit:
| . . . . |
| ... For some decades, the generally accepted Canadian philosophy has been one which aims to integrate persons with disabilities to the largest extent possible into the mainstream of Canadian society. Canada and its health care professionals have had a historical commitment to equality, full participation and maximum integration, with a clear movement away from the isolation and institutionalization of those with mental disabilities towards community living with an extensive, community-based social service support system. The overall incidence of mental retardation is about 3% of the population, and the social services required by and provided to this group varies widely. Social services include residential care services (such as supervised group homes and hostels for persons with disabilities), community-based services (such as adult day programs or vocational training facilities and "sheltered" employment opportunities) and home-based services (such as homemakers, meal and transportation services and respite care to assist family members caring for those with mental disabilities). Often these services complement or supplement the care provided by family or friends, and in some cases these services replace such care and support, with the goal of facilitating personal independence and individual development to the greatest degree possible in each case. |
| 26. Funding for such services is currently shared between the federal and provincial governments, but the services themselves are often delivered by voluntary service organizations who receive their funding directly from provincial government sources (such as the Ministry for Community and Social Services in Ontario). The federal government, however, is currently moving away from direct cost-sharing, to a plan which would witness a "block" transfer of funds from the federal to the provincial governments; with the provinces then having the obligation and discretion to allocate funds from the "block" to each of the education, health and social service areas. The provinces too, in their administration and co-ordination of the delivery of social services for the mentally disabled, have largely reflected the national trend away from institutional placement in favour of retaining where possible disabled children or adults within a family environment while at the same time developing community-based support services outside the home and vocational programs aiming towards social integration and developing the full occupational potential of those with mental disabilities. Ontario alone spends approximately $846 million dollars annually to provide services to 50,000 persons with mental disabilities resident in this province; these figures reflect the number of persons who actually received such social services an not the greater number of those who have been diagnosed as requiring such social services. While those who are "developmentally disabled" (within the meaning of the Developmental Services Act, 1974) have the right to access the services, they are not thereby entitled to "guaranteed" delivery of those services, since limitations on resources has meant access to social services has been dependent on both the severity of the disability and the availability of the service. |
| 27. In assessing the Applicant daughter's condition in light of the primary philosophical norms of maintaining the mentally disabled individual in the home, facilitating community integration and normalization and encouraging the maximization of individual potential through socialization and vocational opportunities, we formed the opinion that the key social services the Applicant's daughter requires are: individualized special education (including speech therapy) and subsequent placement in a vocational program which could provide her with occupational training and perhaps employment opportunities in a "sheltered" work environment, along with the benefits of interaction and socialization which such an environment outside the home provides. The current five year costs for such social services are approximately $20,000 for the specialized education and $25,000 for vocational placement. Other social services (at additional cost) which would benefit the Applicant's daughter would be leisure or recreational programs in the community tailored to those with mental disabilities, continued training in life skills to enhance her ability to carry out activities of daily living, life style supports for persistent residence with kin or for movement to out-of-home care setting. |
| . . . . |
(emphasis added)
[20] In cross-examination, Dr. Bernstein explained that the medical officers do not really examine the individual facts of an application;1 that the cost estimates are applicable on a Canada wide basis; that all decisions are based on the eligibility of the child to apply for the service, not the availability of the services or the likelihood or not that the child or her family will avail themselves of the services.2
[21] Dr. Bernstein indicated that the future employability of Kar Yei had not been a major factor in the assessment.3 It was the cost of the special services that in his view she would need that was significant. The vocational placement costs were estimated at $5,000 a year and presumably these would continue for some time. The special education costs, estimated at $4,000 a year, would likely only be incurred for one year, since Kar Yei was fifteen years old at the time.
[22] Counsel for the respondent summarized the standard that was being applied as one which assessed whether the person was eligible for the social services identified, not whether it was likely she would apply for them or receive them. The test was an assessment of the cost of the services for which she was eligible. As noted, in Dr. Bernstein's affidavit the costs were set out in a Condition Cost Profile Report, dated March 1996. If those costs were above normal costs, then excessive demand was said to exist. (I assume by above normal is meant above the costs borne by the government for a person of the same age who does not suffer from the particular, or indeed any serious, ongoing medical difficulty.) Dr. Bernstein stated, for example, that any child that required special education generally would be considered to cause excessive demand.
[23] I turn then to the issues raised by these facts. I will indicate, however, what is not in issue. There is no dispute about the medical diagnosis concerning Kar Yei's condition. She is mild to moderately retarded as a result of suffering from Down's Syndrome. There is no dispute that her condition would not cause excessive demands on health care services. She is as healthy as any normal child.
[24] The issues are: (1) whether the applicant was given an adequate opportunity to respond to the assessment that Kar Yei's admission would cause excessive demand on social services (adequate in terms of the notice given as to the type of information that could be submitted and by what route; adequate in terms of being provided with sufficient information about the basis of the decision to enable a meaningful response); (2) whether the departmental medical officers erred in refusing to consider Kar Yei's particular situation; (3) whether the opinion that Kar Yei's admission would cause excessive demand on social services was patently unreasonable. It only becomes necessary, for the reasons that follow, to consider the first two issues.
[25] With respect to the first issue, the June 14, 1996 notification letter invites additional medical information only, and it requires that that be submitted through the Hong Kong doctor. Requiring an applicant to channel information concerning whether a disability is likely to cause excessive demand on Canadian social services through a Hong Kong physician, who presumably will have little knowledge about that subject, is, at least, a curious procedure. More importantly, however, the letter invites the submission of medical information only. The letter that was sent appears to be a form letter designed for the situation in which a person's medical diagnosis is in issue. That was not the situation in this case. The letter should have provided for the submission of response information concerning the excessive demand aspect of the opinion.
[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.
[27] While lack of information can insulate a decision-maker from challenges to the decision that has been made, it is not fair to the individual that is the subject of that decision. Nor is it, from a broader perspective, good public policy. Openness, in general, leads to better decision-making. It also leads to greater public confidence in the process and easier acceptance of negative decisions. Openness and transparency in decision-making are important in today's climate of diminishing respect for public servants and increasing cynicism towards our parliamentarians (politicians).
[28] In this case the non-disclosure of information left one potentially relevant matter unexplored: apart from education up to the age of sixteen, or perhaps nineteen, are Canadian residents, who can afford to do so, required to pay for some or all of the social services that have been identified as relevant to Kar Yei's situation. When Dr. Bernstein was asked whether people could receive the services without paying, he answered yes. He, however, was not knowledgeable about the relevant Ontario legislation. This is understandable since he is a physician and not a lawyer. Dr. Bernstein referred to the Developmental Services Act, 1974. That legislation is now R.S.O. 1990, c. 11, as amended.
[29] A review of that Act and the Regulations promulgated thereunder leaves the impression that Canadian residents who are able to do so are required to pay for the social services that are in question. Section 31 of the 1974 Act, for example, provides for payment by the Public Trustee from an incompetent's estate of the proper charges for the person's maintenance in a care facility. Sections 15 and 16 of the Developmental Services Regulations, R.R.O. 1990, No. 272, provide that when an application for admission to a facility or for services is made, the Director or Administrator as the case may be is to determine whether the person is eligible and whether they are able to contribute to all or any part of the cost thereof. The extent to which individuals are expected to pay for the service, if they can do so, is relevant in the context of an opinion that assesses "excessive demand" by reference to the cost to the public purse.
[30] As noted, the applicant was precluded from responding in a meaningful way to the opinion that the admission of his daughter would create excessive demands on social services in Canada because information necessary to allow for such was not disclosed. Thus a breach of the rules of natural justice, or fairness, occurred.
[31] 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.
[32] 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.
[33] As indicated above, I do not propose to consider the proper statutory interpretation of the concept "excessive demands" ("un fardeau excessif"). Whether cost alone is a
sufficient criteria, whether availability is also relevant, whether "excessive" should be interpreted as requiring an order of magnitude beyond merely "any amount above normal" are all questions that I do not find it necessary to consider in order to dispose of this application.
[34] For the reasons given the application is allowed and the decision of August 19, 1996, will be quashed. Since both counsel asked an opportunity to make representations as to whether a question should be certified after reasons were issued, a final order will be entered later.
[35] Counsel for the respondent shall have fourteen days after the issuing of these reasons to decide whether to seek certification and if so to submit a draft of such together with representations thereon. If certification of a question or questions is sought, counsel for the applicant may either respond in writing within seven days or seek a telephone conference to dispose of the issue. If a response is given in writing the respondent shall have seven days thereafter within which to reply.
"B. Reed"
Judge
TORONTO, ONTARIO
January 14, 1998
FEDERAL COURT OF CANADA
Date: 19980114
Docket: IMM-3366-96
BETWEEN:
CHING SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3366-96
STYLE OF CAUSE: CHING SHIN HENRY WONG
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: NOVEMBER 7, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: JANUARY 14, 1998
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
Ms. Mary Lam
For the Applicant
Ms. Marie-Louise Wcislo
For the Respondent
SOLICITORS OF RECORD:
Mr. Cecil L. Rotenberg, Q.C.
Barrister and Solicitor
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
__________________
1 Applicant's Supplementary Application Record, Tab 2, Q. 220.