Date: 19980227
Docket: IMM-3366-96
BETWEEN:
CHIN SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] On January 14, 1998, I issued reasons explaining why an order setting aside the decision under review would be granted. I deferred issuing that order as counsel had requested that they be given time, after reasons were issued, to make submissions on the possible certification of a question for appeal. In addition, counsel for the applicant made submissions about the scope of the order that is to be granted and the description of the decision that is to be referred back for reconsideration.
[2] I have not been persuaded that a question appropriate for certification has been put forward. Counsel for the respondent, on January 28, 1998, provided the Court with a thorough and well written memorandum summarizing the jurisprudence that relates to when certification should be granted. The question that was proposed for certification, however, was:
| Given that the object of the duty of fairness, when applied in the context of medical decision-making under the Immigration Act, is to provide an applicant with a meaningful opportunity to bring to the reviewing doctors' attention, facts relating to his medical condition and any "excessive demand" which his admission to Canada may cause, to what extent should the duty of fairness be manifested in the consultation process leading to a medical opinion under s. 19(1)(a)(ii) of the Immigration Act? |
[3] I responded to that communication, without waiting for submissions from counsel for the applicant, noting that the question was too vague to properly be the subject of a certification.
[4] In response to that, and by reference to an attempted redraft I had proposed for the opening words of the question, counsel for the respondent submitted the following question:
| Given that a duty of fairness exists such that a prospective immigrant to Canada should have a meaningful opportunity to respond to the opinion of two medical officers that (his or her) medical condition might reasonably be expected to cause excessive demands on Canadian health or social services, is it sufficient for medical officers to provide their diagnosis, prognosis and identify the specific health or social services required; or must the medical officers further disclose the factual and procedural basis upon which their medical opinion was rendered? |
[5] Unfortunately, this question is also far too broad. Also, there was no dispute about the relevant medical diagnosis. The applicant's daughter is mildly to moderately retarded. Also, there was no dispute that she would not cause any excessive demand on health services in Canada. It was admitted that she was as healthy as any normal person. The decision under review will be set aside because the applicant had been given insufficient information concerning the basis of the conclusion that his daughter's admission might reasonably be expected to cause excessive demands on social services in Canada, to enable him to respond to that assertion. Health services and the doctors' medical opinion were never in issue.
[6] The findings set out in the January 14, 1998 reasons indicate that a second reason for setting the decision in question aside was the failure of the decision-makers to consider the particular circumstances of the individual in question. Thus, not only is the question proposed for certification imprecise but, even if it could be answered in a meaningful way, the answer would not determine the outcome of the application. There would have to be at least one additional question, and perhaps two, answered, for example: (1) are the decision-makers required to consider the circumstances of the individual applicant; (2) what is the meaning of "excessive demand" and was the decision in this case made by applying the appropriate test. For these reasons I am not prepared to certify the question that has been proposed.
[7] With respect to the terms of the order that will issue, counsel for the applicant argues that it is only the decision that the applicant's daughter's admission might reasonably be expected to cause excessive demands on social services that has been questioned, and only that decision need be reconsidered. Counsel for the respondent argues that it is the decision refusing the application for permanent residence as a whole that is set aside and therefore the applicant should be required to restart the whole process. This could involve, for example, new medicals for the applicant, his wife, his other two children as well as for his daughter Kar Yei.
[8] I have been persuaded that the order should be limited to setting aside only the decision that Kar Yei's admission to Canada might reasonably be expected to cause excessive demands on social services, and that it is only that decision that need be reconsidered. Kar Yei's medical condition is not a deteriorating one. Also, as noted above, there has never been any dispute about its nature. There has never been any dispute that all that is in issue is the extent to which Kar Yei's admission might reasonably be expected to cause excessive demands on social services. I am persuaded that the order should make it clear that the nature of the reconsideration required is a restricted one.
[9] In summary, firstly, I have not been persuaded that an appropriate question for certification has been put forward. Secondly, an order will issue setting aside the decision in question, referring it back for reconsideration and, for the sake of clarity, making it clear that that reconsideration is to be based on the existing record (no new medical is required) and that any new evidence that is adduced relate only to the question of whether or not excessive demand on social services might reasonably be expected to be caused by the daughter's admission.
Judge
OTTAWA, ONTARIO
February 27, 1998