Date: 19981127
Docket: IMM-3366-96
BETWEEN:
CHING SHIN HENRY WONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] This is an application for a clarification of an order I issued on February 27, 1998. That order set aside a decision denying the applicant admission as a permanent resident to Canada because his daughter is mildly to moderately retarded. The matter was referred back for reconsideration, on the basis of the existing medical evidence but allowing for additional evidence with respect to whether the daughter's admission was likely to create an excessive demand on Canadian social services.
[2] A significant reason for granting that order was that there had been a breach of the rules of fairness (indeed natural justice) because the factors that were considered relevant to the making of the decision had not been disclosed, and the applicant was deprived therefore of a meaningful opportunity to respond. Two paragraphs from the reasons for order, dated January 14, 1998 explain this reasoning:
| [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). |
[3] Counsel for the applicant called my attention to other decisions of this Court in similar cases: Poste v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1805 (December 22, 1997); Lau v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 485 (April 17, 1998); Li v. Canada (Minister ) Citizenship and Immigration) [1998] F.C.J. No. 1395 (September 30, 1998). Counsel for the applicant also called my attention to the decision in Tang v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1397 (September 30, 1998). He fears that his clients' application may be subjected to the same type of "stand-off" that the applicant in this last case faced, where the Court repeatedly struck down the decision of the relevant officers and the officers simply repeated their earlier decisions. Counsel argues that the judicial review process is based on the assumption that a decision making body whose decision is struck down will make a new decision in accordance with the spirit and reasons that have been given for the striking down of the first decision. I agree that if such does not exist the judicial review procedure becomes a sham.
[4] In any event, after the February 14, 1998 order striking down the decision that was subject to review, the applicant's counsel wrote a number of letters urging the immigration officers to make the second decision in a timely manner. He also repeatedly asked that the factors relevant to the decision that would be made be identified. He was assured on several occasions that he would be provided with that information: in a letter dated March 31, 1998 from the immigration officer Maria Escott; in letters dated April 7 and April 15, 1998 from counsel for the respondent; in a letter dated June 16, 1998 from Maria Escott. I quote from the April 7 and April 15 letters:
| (April 7, 1998 letter) |
| It is clear to us that you continue to have questions about the process and method by which the medical officers will form their "excessive demand" opinion in this case under section 19(1)(a)(ii) of the Immigration Act. Please rest assured you will be given ample opportunity to present your questions to the medical officers in this case in the event that they again determine that "excessive demands" will be created. Further, the medical officers will respond to your questions and thereafter give you an opportunity to submit anything further on the "excessive demands" issue, before their decision on "excessive demands" is finalized. |
| In summary, Ms. Escott and I assume that your letter of April 4, 1998 means that you have no further material to submit at this time on the issue of "excessive demands." Therefore, we anticipate the medical officers will soon be in a position to form their tentative, new opinion on "excessive demands", pursuant to the Court's order. If they determine such to exist, you will be provided with their new "Medical Notification" and be granted an opportunity to pose your questions, receive the medical officers' response and thereafter submit anything additional you may wish, before the medical officers finalize their opinion on the issue of "excessive demand." |
| (April 15, 1998 letter) |
Once Ms. Escott is in receipt of the new "Medical Notification", it will be forwarded to you for your comment and response. It has also been made clear to you within our two letters above-noted, that you will have all your outstanding questions answered by the medical officers before any final medical opinion on "excessive demands" issues in this case.
[5] On June 16, 1998 the new medical notification issued. It reads in part:
If landed, she [the applicant's daughter] and her family will be entitled to and will likely require a variety of supports. The supports would include supports for intellectual functioning and adaptive skills. In particular, health and safety issues, functional academics, leisure activities and occupation skill acquisition. The requirement for these support structures will likely create an excessive demand on Canadian social services making this applicant inadmissible under Section 19(1)(a)(ii) of the Immigration Act.
[6] The covering letter sent to the applicant's counsel, that accompanied this notification, repeats the previous commitment that counsel's questions as to the basis of the new notification will be answered to enable his client to respond to the opinion set out therein:
As I previously advised in my correspondence to you dated March 31st, 1998, you will be accorded thirty days within which to respond to this new medical notification with any materials, submissions or questions which you may think relevant to the medical opinion the doctors have now reached.
Any additional materials or submissions which are delivered to my attention within thirty days, will be forwarded by me to the medical officers for their consideration, to see if such might alter the new "excessive demand" opinion. Also, any questions I may receive from you will also be forwarded by me to the medical officers for their response. If nothing is received from you within thirty days, I will proceed to render my decision upon this application seeking an immigrant visa.
[7] Despite these assurances, counsel for the applicant's questions have still not been answered as of the present date (November 27, 1998). It is clear that the text of the medical notification on its face does not give a person enough specific information to be able to intelligently respond to it: what are the specific services that it is assumed this applicant's daughter will require?; is excessive demand based on cost or on lack of availability of the service? (I set out the two above questions as examples only, since I do not have before me the precise questions that Mr. Rotenberg seeks to have answered.)
[8] Counsel for the respondent agrees that the questions that have been posed should be answered by the medical officers in accordance with the commitments that have been made. She also agrees that a specific time limit should be imposed.
[9] I would add that I find it very odd that the medical officers seem unable to describe the grounds of their opinion in a timely fashion. Surely these grounds must have been known before the opinion was rendered?
[10] In any event, an order will issue, clarifying my order of February 27, 1998 so as to specifically require that a response to Mr. Rotenberg's questions be provided by the medical officers by January 4, 1999.
"B. Reed"
Judge
TORONTO, ONTARIO
November 27, 1998
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: FRIDAY, NOVEMBER 27, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: FRIDAY, NOVEMBER 27, 1998
APPEARANCES: Mr. Cecil Rotenberg
For the Applicant
Ms. Diane Dagenais
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barrister & Solicitor
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981127
Docket: IMM-3366-96
Between:
CHING SHIN HENRY WONG
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER