Date: 19990623
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 an amendment to an order granted by me, dated February 27, 1998, to add thereto the following requirements:
| The Minister shall process this application for permanent residence within 30 days without regard to the daughter's medical condition on excessive demands on Canadian social services given that the medical officers will not consider the unique situation of this applicant. |
[2] It is necessary to set out some of the history of this proceeding. The applicant has an 18 year-old daughter who is mildly to moderately mentally retarded. The applicant and his family were therefore refused admission to Canada as landed immigrants on the ground that the daughter "might reasonably be expected to cause excessive demands on ... social services in Canada". While the relevant provision of the Immigration Act identifies "excessive demands on health or social services" as a reason for denying admission, the evidence was very clear that the applicant's daughter was as healthy as any normal person, and thus, it was social services that were in issue.
[3] The evidence showed that the daughter had always been very well looked after by her family and that they expressed the intention to continue to do so. The applicant has significant financial resources and offered to establish an irrevocable trust in favour of his daughter, if the family was admitted to Canada, to ensure that any care she might need in the future would never be at the expense of the Canadian taxpayer.
[4] The on-going litigation has been an attempt by the applicant to obtain information concerning the basis of the decision that was given: what services it is thought the daughter will require; what do those services cost; are residents of Canada who can afford to pay for them required to do so in whole or in part; was any consideration given to the applicant's commitment to set up an irrevocable trust fund for his daughter so that she would never have to be cared for at taxpayers' expense?
[5] Counsel for the applicant has also been attempting to ensure that the applicant's daughter's situation is assessed by reference to her own unique situation, a requirement articulated in decisions of this Court, and not merely on the basis that because she suffers from mild to moderate mental retardation she is automatically determined to be likely to cause excessive demand on Canada's social services.
[6] The February 27, 1998, order struck out the decision that had found the daughter to be inadmissible, and had referred the application for landing back for reconsideration. The underlying basis for that order was that the applicant had not been provided with information about the factors relied upon by the decision-makers in making their decision and thus was unable to contest it (a breach of fairness had occurred). Implicit in the reasons was the requirement that the applicant be given such information when any future decision was made.
[7] There was subsequently some delay by the respondent in complying with the requirement that information be provided. This caused counsel to seek an order from this Court establishing a time-limit within which the information had to be provided. Such an order was given on November 27, 1998, and answers to counsel's questions were subsequently provided.
[8] Counsel for the applicant argues that the answers demonstrate that the relevant officers have not and will not assess the applicant "in her own uniqueness" but that they determine that every individual who is mentally retarded is likely to cause excessive demands on social services in Canada. Thus, the requested amendment to the February 27, 1998, order is sought.
[9] 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.
[10] There are certainly a number of unresolved issues in this area: what is meant by "excessive demands"; whether the medical officers are correct in stating that the commitment by a prospective immigrant to establish an irrevocable trust to cover any potential costs a dependent may incur is irrelevant; whether the assessment that was done in this case addresses the daughter's situation with sufficient specificity to justify the conclusion that her admission might reasonably be expected to cause "excessive demands on ... social services". Also, the question whether respite services or sheltered workshops are provided without charge to those who can afford to pay has not yet been addressed. It appears that the medical officers who are doing the assessment may not know the answer to that question.
[11] Nonetheless, these questions are not ones that can be addressed in the context of a motion to amend the text of the February 27, 1998, order. They properly belong in a challenge to the respondent's final decision, on the redetermination of the daughter's admissibility, a decision that has not yet been taken. I am not persuaded that the order that is sought can be granted.
"B. Reed"
Judge
TORONTO, ONTARIO
June 23, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3366-96
| STYLE OF CAUSE: CHING SHIN HENRY WONG |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED J.
DATED: WEDNESDAY, JUNE 23, 1999
APPEARANCES: Mr. C. Rotenberg
Ms. M. Lam
For the Applicant
Ms. S. Nucci
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barristers & Solicitors
United Centre,
808-255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990623
Docket: IMM-3366-96
Between:
| CHING SHIN HENRY WONG |
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER