Date: 19991026
Docket: IMM-228-99
BETWEEN:
GIL MENDOZA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of a decision of an Immigration Officer who denied the applicant's application for an immigrant visa on the basis that his son was inadmissible to Canada because he falls within the class of persons described in s. 19(1)(a)(ii) of the Immigration Act.
[2] The applicant, Gil Mendoza, and his family are citizens of the Philippines. The visa application was submitted on behalf of himself, his wife and two children, Anna and Miguel. The latter, currently 9 " years old, has been diagnosed as having microcephaly and global delay in development (i.e. "severe mental retardation").
[3] In November, 1991, the applicant and his family moved to Hong Kong because of his position with the Hong Kong Bank. He was subsequently offered a position with the Hong Kong Bank of Canada in Vancouver, B.C. In March, 1996, he and his family arrived with an Employment authorization that had been issued to the applicant. For compassionate reasons and given the background of the applicant's posting to Canada, Miguel was issued a Minister's Permit to enter Canada.
[4] Subsequently, the applicant and his family decided they would like to remain in Canada. On September 17, 1997, the applicant and his wife completed an application for permanent residence. In their application, the two children were included as dependants.
[5] Pursuant to the Immigration Regional Program Centre's request, Miguel underwent several medical tests and assessments. In a letter dated August 31, 1998, the applicant received a notification of Miguel's medical assessment. The letter provided a summary of his medical condition and concluded: "This information leads me to conclude that your dependant could be expected to cause excessive demands on health and social services in Canada. For this reason, your application could be refused".
[6] In a letter dated September 14, 1998, the applicant responded to this medical notification. The applicant alleged "Miguel does not require any more services at home when he remains with my wife. [...] We had applied for Miguel to come to Canada as my dependant. We were not expecting that he would become self-sufficient, but that we would be able to provide for him on an ongoing basis". The applicant stressed that since his arrival in Canada Miguel has never had any serious medical conditions requiring intensive medical care.
[7] In a letter dated December 10, 1998, an Immigration Officer advised the applicant that his application for permanent residence had been refused. The application was denied because Miguel suffers from a medical condition which made him inadmissible pursuant to s. 19(1)(a)(ii) of the Immigration Act. The letter restated the same text contained in the medical notification dated August 31, 1998 and concluded by stating that the Immigration Officer "duly considered" the applicant's response.
[8] According to different medical assessments, Miguel has a development age equivalent to 2.6 years. Due to his lack of verbal communication, restlessness and inattention, it is impossible to derive an I.Q. score. Pursuant to Dr. Chan's evaluation, Miguel is "generally unresponsive to stimuli". Assistance, support and supervision are likely to remain pervasive.
[9] The applicant submits that the medical opinion is legally invalid because it was made in the absence of supporting evidence, was not based on consideration of all the evidence and thus generated in a fashion contrary to the principles of natural justice.
[10] He stresses that Miguel needs medical consultations equal to those for a normal child and that Miguel's seizures are very well controlled on the present dose of medication. He also argues that he has demonstrated that he and his wife are able to physically and financially support and care for Miguel. He emphasizes that the medical officer, Dr. Giovinazzo, failed to consider "cogent evidence" regarding the family support that would be available to Miguel.
[11] The applicant alleges that the medical officer referred to a report providing estimates from the Ontario Ministry of Education and Training of Student with Special Needs. From this source, it notes the care required for Miguel would be in excess of $4,000 per year. The applicant alleges that no reference to general or special education in Vancouver, B. C., was made. The applicant, thus, claims that the medical opinion was invalid since the officer did not seek nor obtain the information necessary for a fair evaluation, nor did he review or comment on the availability of the social service support system in British Columbia.
[12] The applicant claims that the medical officer wrongly considered the special education provided for mentally challenged children within the public school system as a social service within the meaning of s. 19(1)(a)(ii) of the Immigration Act and failed to consider all the evidence with respect to the personal circumstances of the applicant and his family.
[13] In concluding, the applicant argues that the Immigration Officer failed to provide the criteria for excessive demand. He contends that he was denied an opportunity to disabuse medical officers of their opinion since the criteria upon which the medical officer determined excessive demand was not disclosed.
[14] The two issues are the following:
| 1. Did the Immigration Officer err by applying a medical opinion that was not based on consideration of all the evidence with respect to the personal circumstances of the applicant and his family? |
| 2. Did the Immigration Officer err by failing to provide the criteria upon which the assessment of excessive demands were based? |
[15] Medical officers have a duty to assess the circumstances of each individual that comes before them and their opinion must be founded on those personal circumstances; Poste v. Canada [1997] F.C.J. No. 1805. It is the medical officer who must be of the opinion that the admission of the person concerned would cause or might reasonably be expected to cause excessive demands on health or social services.
[16] The assessment of probable demands must "involve an analysis of whether on the balance of probabilities having regard to all the circumstances, including but not limited to the severity of the applicant's condition, the degree and effectiveness of the support promised by the family, and the prospects for economic and physical self sufficiency, the dependant applicant would be cared for in his family home into the future".
[17] One of the main arguments of the applicant is that the Immigration Officer did not consider the impact of family support alleged its response letter. However, the decision of the Immigration Officer states: "I have now received and duly considered your response". In Lau v. Canada [1998] F.C.J. No. 485, it was provided that the lack of due consideration of family support represents a failure to consider all of the evidence with respect to the personal circumstances of the applicant.
[18] The Sooknanan decision, (1998) 142 F.T.R. 155 (Fed. T.D.), is very similar to the case at bar. In both cases, the applicants suffer from severe mental retardation, are unable to attain any degree of self-sufficiency and need constant supervision. In both cases the applicants' parents have the financial capabilities to provide for the applicants' needs. In the above-mentioned decision, the Court analyzed the effect of the family support and stated:
| I find that his [the applicant's father] financial wherewithal and his ability to engage such services [a nanny] are of little consequence, as the applicant becomes eligible for social services upon being granted landed immigrant status. |
The Court further stated:
| The evidence before the Appeal Division was that the applicant's parents had been providing extensive care required by the applicant. There was no evidence, nor would are expected there to be, to demonstrate that the applicant's parents would be able to continue to do so indefinitely... |
[19] In the case at bar, the evidence of Dr. Chan states:
| At present time his parents are able to physically care for him. However, he is growing larger and stronger and his mother may not be able to handle him when he reaches adolescence. |
[20] The Cabaldon decision, (1998), 140 F.T.R. 296, stipulates that as a permanent resident, the child would be entitled, as of right, to social services he would require upon landing. This right cannot be waived through financial support promised by relatives.
[21] The opinion of the medical officer with respect to excess demand on social services is reasonable if there is sufficient evidence to support it. As mentioned earlier, an assessment of an applicant needs to address aspects of the individual's circumstances, as well as the nature and availability of the specific services which it is alleged the applicant needs. Indeed, an assessment requires some medical or other informed opinion relating to the cost or availability of social services in Canada and the likelihood or otherwise of the applicant making use of such services; see Bharata [1998] I.A.D.D. No. 1010 and Fong (1997), IMM-158-96 (Fed. T.D.).
[22] In his affidavit, Dr. Giovinazzo provides an individualized and detailed assessment of Miguel's needs to support his medical opinion that his severe mental retardation will likely result in excessive demands. Attached to his affidavit, Dr. Giovinazzo included a copy of the Development Disabilities Condition Report prepared by the Department of Citizenship and Immigration. This report provides information related to the social service support system, in the Canadian context, that would likely be needed by Miguel. The report also includes estimates of costs for the management of mental retardation in the Canadian context.
[23] In Wong v. Canada [1998] F.C.J. No. 24, the Court found that the factors considered relevant in making a decision must be disclosed so that the applicant is able to respond to it. In the present case, the decision not to admit the applicant and his family in Canada provided more than enough information concerning the basis on which the opinion was rendered.
[24] The onus is on the applicant to demonstrate that the medical opinion is unreasonable and that there is no link between the condition of the applicant's son and the conclusion that because of his condition, his admission would cause excessive demands. In the case at bar, the Immigration Officer's decision is not unreasonable.
[25] I am sympathetic to the applicant's request but even though there is more than adequate resources at the present time in the family context to provide for Miguel, the affidavit of Dr. Giovinazzo, which is detailed and analytical of many concerns, confirms the need for ongoing assistance as being almost self evident. The condition is pervasive.
[26] There appears to be little hope for the future at this time and, in light of all the facts, I am unable to allow the remedy sought.
[27] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
October 26, 1999