Date: 20030128
Docket: IMM-4207-01
Neutral citation: 2003 FCT 90
Toronto, Ontario, Tuesday the 28th day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
PIL GYO HEO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Mr. Pil Gyo Heo (the "Applicant") seeks judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, and section 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (the "Act") of the decision of Visa Officer, Daniel A. Vaughan (the "Visa Officer"). In his decision, dated July 26, 2001, the Applicant's application for permanent residence in Canada was refused.
[2] The Applicant, a citizen of South Korea, applied for permanent residence in Canada in the independent, skilled worker category. He submitted his application in May 1999 and included his wife and son, Soon Young Heo, as accompanying dependants. The Applicant described his intended occupation in Canada as an electrical engineer.
[3] The Applicant submitted his application for permanent residence under cover of a letter dated April 28, 1999. As part of the process, he and his dependants were required to submit medical information. By letter dated March 8, 2001, the Visa Officer advised the Applicant that assessment of the medical examination had been completed and a copy of the medical notification was enclosed. This form related to the Applicant's son and reported a diagnosis of muscular dystrophy. The narrative portion of the medical information form provided as follows:
This 17 year old applicant has clinical and laboratory evidence of muscular
dystrophy, a condition marked by progressive muscular weakness associated
with increasing levels of functional disability. Currently, he is wheel chair
dependant and requires assistance from others for performance of key activities
of daily living such as dressing, bathing and toilet use. If landed, the applicant
would be eligible for, and likely require, a range of medical, nursing and social
services support which would include domiciliary nursing, physiotherapy and
likely repeat episodes of hospitalization for monitoring of the underlying medical
condition and treatment of respiratory infections and progressive respiratory
failure, a frequent accompaniment of the muscular weakness associated with this
condition. The applicant would also require assisted transport. The requirement
for this degree of health and social services support would be significantly greater
than that of the average Canadian and would be deemed excessive. He is, therefore,
considered inadmissible under Sect. 19(1)(a)(ii) of the Immigration Act.
[4] The Visa Officer, in his letter of March 8, 2001, advised the Applicant that on the basis of this opinion reached by the medical officer, the Applicants could be found to be inadmissible to Canada. The Visa Officer provided the Applicant with the opportunity to provide further information concerning his son's health.
[5] The Applicant responded to this letter with a letter dated May 7, 2001. He submitted further materials including reference letters and materials concerning his son's academic abilities and success as well as a letter dated April 17, 2001 from a Dr. Woo. Dr. Woo confirmed the diagnosis of Duchenne type muscular dystrophy and commented positively upon the son's intelligence and academic success.
[6] The materials submitted by the Applicant in response to the procedural fairness letter of March 8, 2001 were forwarded to medical officers with the Department of Citizenship and Immigration, under cover of letter dated June 21, 2001, by Dr. James Beltran. Dr. Beltran had conducted the initial assessment of the son's medical condition and his opinion received concurrence from Dr. W.G. Waddell. Dr. Waddell is also a medical officer employed by the Department of Citizenship and Immigration and has been so employed since December 1, 1998.
[7] In his covering letter dated June 21, 2001, Dr. Beltran advised that in his opinion, the further information submitted by the Applicant concerning his son's medical condition, did not alter the original medical assessment of medical inadmissibility. Dr. Beltran offered the following rationale for his conclusion:
Based on this information, I feel that this does not alter the original medical
assessment of medical inadmissibility for the following reasons:
- additional reports, letters and comments submitted do not/ not provide
new information to suggest that the condition for which applicant was
originally rendered medically inadmissible has either improved or will
not likely give rise to excessive demands on health and social services.
[Emphasis in original]
[8] By email dated July 17, 2001, Dr. Waddell advised Dr. Beltran that he had reviewed the material forwarded on June 21, 2001, that is the Applicant's response to the procedural fairness letter. Dr. Waddell further stated as follows:
I agree with your determination that no new evidence has been presented that would modify our joint decision that Mr. Heo is medically inadmissible.
[9] This concurring opinion from a second medical officer was relayed to the Visa Officer on July 24, 2001. On July 26, 2001, the Visa Officer issued his letter to the Applicants in which he stated as follows:
In an earlier letter from this office, you were informed of the results of your dependant,
Soon Young, medical examination and that this information would likely result in the
refusal of your application. You were invited to make further submissions in response
to this assessment.
The medical information you provided was reviewed by medical officers from Overseas
Medical Services of Citizenship and Immigration Canada and they have informed me that
their opinion is unchanged.
I have now completed my assessment of your application. Your dependant, Soon Young,
comes within the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1993, ...
The Applicant now seeks judicial review of this negative decision.
APPLICANT'S SUBMISSIONS
[10] The Applicant argues that there was insufficient evidence before the medical officers to justify their conclusions that his son would cause excessive demands on Canada's health or social services. He says that the medical evidence was that the prognosis was unpredictable as
his son's condition could improve, stay the same or deteriorate. In this regard, the Applicant relies on the medical report of Dr. Moon dated July 17, 2000.
[11] He also argues that the medical notification provided by the medical officers expresses several conclusions concerning his son's medical condition that were unsupported by evidence on the record. For example, the conclusion that his son would require "domiciliary nursing", "likely repeat episodes of hospitalization" and "treatment for respiratory infections of progressive respiratory failure" were unsupported by evidence before the medical officers. The evidence was to the effect that the Applicant's son had never required such services or hospitalization in the past.
[12] With respect to the term "excessive demands", the Applicant argues that this must be interpreted in light of the supply for the demanded service. Here he relies on Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311, Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56, and Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.).
[13] Further, the Applicant submits that the evidence in this case does not show that the medical officers considered the issue of supply of services that his son would allegedly require in the future. Referring to Rabang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1934 (T.D.) (QL), the Applicant says that in the absence of consideration of the supply or scarcity of health and social services likely to be required, the reasonableness of the medical officers' opinion concerning "excessive" demands cannot be assessed. This is a reviewable error in law, since the Visa Officer relied on the medical officers' opinion, in reaching his opinion.
[14] The Applicant further argues that a medical officer is under a duty to consider whether required services are covered by provincial health care and to clearly address this in his opinion; see Manto v. Canada (Minister of Citizenship and Immigration) (2001), 205 F.T.R. 165. The medical officers did not do this in the present case and it is impossible to assess the reasonableness of their conclusion in the absence of evidence that they addressed and considered the proper criteria in evaluating whether the demand would really be "excessive".
[15] Next, the Applicant argues that the medical officers did not identify a specific basis for which excessive demand would be caused by his son requiring special care. The Applicant says that the evidence suggests a measure of independence and good physical health of his son, as shown by the reference letters attesting to his son's mental abilities and academic successes. There was no basis for the medical officers to conclude that special care, to the degree stated in the medical notification, was required. In support of this argument, the Applicant relies on Mo v. Canada (Minister of Citizenship and Immigration) (2001), 201 F.T.R. 11.
[16] The next main argument raised by the Applicant relates to the alleged fettering of discretion by the Visa Officer. In this regard, the Applicant argues that the Visa Officer who made the negative decision did not have before him all the material that was before the medical
officers. He says this amounts to a reviewable error because the Visa Officer failed to consider all relevant evidence and in this regard, he relies on Chen v. Canada (Minister of Citizenship and Immigration) (1993), 65 F.T.R. 73.
[17] Finally, the Applicant argues that the Visa Officer erred by refusing to exercise his discretion pursuant to section 11(3) of the Regulations, as well as the not considering the possibility of allowing his son to enter Canada on a Minister's permit. Here, the Applicant relies on Savvateev v. Canada (Minister of Citizenship and Immigration) (1999), 170 F.T.R. 317.
[18] In conclusion, the Applicant argues that if this Court finds that the medical officers or the Visa Officer erred, even in part, then the decision should be set aside as the final outcome, had the error not occurred, is unknown. Here he relies on Tahir v. Canada (Minister of Citizenship and Immigration) (2001), 209 F.T.R. 62.
RESPONDENT'S SUBMISSIONS
[19] The Respondent argues that the medical officers and the Visa Officer properly evaluated and processed the Applicant's application in accordance with the law and principles of procedural fairness.
[20] The Respondent submits that the evidence supports the conclusion that the admission of the Applicant's son would cause, or would reasonably be expected to cause "excessive demands"
on health or social services in Canada. Relying on Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.), the Respondent argues that this Court has accepted that the accuracy of the medical officers' diagnosis and prognosis concerning medical conditions arises directly out of their professional, specialized medical expertise and is not open to review by a lay person.
[21] As well, the Respondent argues that this Court has upheld medical officers' opinions regarding section 19(1)(a)(ii) of the Act as reasonable where that opinion is formed after consideration of the evidence before them concerning the nature, severity and probable duration of the health condition of the prospective immigrant and the officers have clearly identified which medical or social services are likely to be required. The Respondent argues that the medical officers in this case adhered to the standard reviewed by the Court in Mohamed v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 90 (C.A.), Parmar v. Canada (Minister of Employment and Immigration), 6 Imm. L.R. (2d) 146 (F.C.A.) and Ning v. Canada (Minister of Citizenship and Immigration) (1997), 134 F.T.R. 303.
[22] In response to the Applicant's arguments concerning the supply of medical services, the Respondent says that knowledge of the specific level of supply of a particular health or social service in Canada is not required for medical officers to come to a legitimate and reasonable opinion pursuant to section 19(1)(a)(ii). Here, the medical officers concurred in the specific diagnosis of the son's medical condition, evaluated the required services and assessed whether the use of such services would impose an "excessive" or "more than normal" demand on those services in Canada. Here, the Respondent relies on Jim et al., supra, Ismaili, supra, and Ning, supra.
[23] The Respondent argues that the process followed by the Visa Officer and the medical officers in this case complied fully with the requirements of procedural fairness as outlined by the Federal Court of Appeal in Jang v. Canada (Minister of Citizenship and Immigration) (2001), 278 N.R. 172 (F.C.A.) and Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413 (C.A.). In the present case, the Applicant was given the opportunity to respond to the medical officers' diagnosis, prognosis and conclusions regarding "excessive demands". The Applicant provided additional material that was considered by the medical officers.
[24] The Respondent denies that there was any fettering of discretion by the Visa Officer in making his decision. Once the medical officers make a finding pursuant to section 19(1)(a)(ii), that opinion is binding on the Visa Officer unless there is an obvious defect in the opinion which makes it unreasonable. In this regard, the Respondent relies on Fei, supra, and Ma, supra.
[25] Finally, the Respondent says that there is no foundation for the Applicant's submissions concerning the failure of the Visa Officer to exercise discretion pursuant to section 11(3) of the Regulations. The Applicant did not request the exercise of such discretion and a request is a prerequisite; see Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316.
[26] The Respondent further argues that section 11(3) of the Regulations does not authorize a visa officer to exercise his discretion for the purpose of overcoming a finding of medical inadmissibility. That discretion is available to allow a visa officer to issue an immigrant's visa when he holds the opinion that units awarded according to Schedule I of the Regulations do not accurately reflect the ability of a prospective immigrant to become successfully established in Canada. In the present case, the medical admissibility of the Applicant's son, not units of assessment, were at issue.
ANALYSIS
[27] The relevant legislation for this application is section 19(1)(a)(ii) of the Act which provides as follows:
| 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, ... (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 invalidité 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_: ... (ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé; |
[28] The constitutional validity of this provision was recently upheld by the Federal Court of Appeal in Deol v. Canada (Minister of Citizenship and Immigration), 2002 FCA 271, [2002]
F.C.J. No. 949 (C.A.)(QL). There the Court commented on the absence of a statutory definition of "excessive demands" and said at paragraph 18:
However, it was held in Ismaili v. Canada (Minister of Citizenship and Immigration)
(1995), 100 F.T.R. 139, that the Minister has no statutory power to enact regulations
dealing with medical inadmissibility on the ground of excessive demands, but only on
the ground of public health and safety. Thus, there is no statutory definition of
"excessive demands".
[29] The Court went on to consider other recent decisions where the concept of "excessive demands" has been addressed. In Poon, supra, at paragraph 21, Pelletier J., as he then was, said:
Cost alone cannot be the determining factor. If it were, one would expect the statute and the regulations to refer to excessive cost instead of excessive demand.
[30] However, it is not sufficient to only consider the question of cost. The concept of "excessive demands" in the Act is related to the question of supply and demand of health services in Canada. In this regard, I refer to Ma, supra, at 313, Shan v. Canada (Minister of Citizenship and Immigration) (1998), 153 F.T.R. 238 at paragraphs 3-5 and Manto, supra, at paragraphs 28 and 29.
[31] In Deol, supra, the Federal Court of Appeal also found that consideration of cost and availability is a necessary part of assessing whether an individual may pose "excessive demands" upon health services in Canada. At paragraph 24, the Court said:
Moreover, it is unrealistic to regard cost and availability as unconnected. If enough
people need expensive but low demand health services, resources may have to be
diverted from other services for which demand is higher, thereby creating or lengthening
waiting lists for those services. Alternatively, an increased demand for a particular
service may prevent the reallocation of funds to services that are in short supply.
[32] The Federal Court of Appeal went on to find that in Deol, supra, supply of health services was considered and said at paragraph 26, as follows:
Hence, when both cost and availability are considered, it was clearly open to the Board
to conclude on the evidence that it was reasonable for the visa officer to conclude that,
if admitted as a permanent resident, Mr. Singh's demands for health services were likely
to be excessive. Accordingly, there is no basis for interfering with this aspect of the
decision on an application for judicial review.
[33] In the present case, there is no evidence that the medical officers turned their minds to the issues of supply and demand of health services in relation to the Applicant's son. The absence of such evidence puts in question the reasonableness of the opinion expressed by the medical officers and the ultimate conclusion of the Visa Officer about the medical inadmissibility of the son. In Rabang, supra, Justice Sharlow, as she then was, said at paragraphs 14, 20-21 as follows:
The evidence in the medical record supports the medical officer's opinion in so far as it
relates to Patrick's condition and his probable need for future medical attention, therapy
and special education. However, with one minor exception...,there is no evidence as to
what I call the non-medical aspects of the opinion, namely the availability, scarcity or cost
of the publicly funded health or social services that Patrick is likely to require. No attempt
has been made to fill this evidentiary gap with an affidavit. As a result, it is impossible to
assess the reasonableness of the medical officer's opinion that Patrick's needs can reasonably
be expected to place an excessive demand on health and social services in Canada.
...
In this Court, evidence of social cost has been adduced in a number of cases to justify a
medical officer's opinion as to excessive demand. I refer, for example, to Ma, supra,
Mendoza v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1639
(F.C.T.D) and the proceedings in the Trial Division in Thangarajan, supra (reported at
(1998) 152 F.T.R. 91) and the companion case, Yogeswaran v. Canada (Minister of
Citizenship and Immigration) (1997), 129 F.T.R. 151 (both affirmed by the Federal Court
of Appeal on June 24, 1999), [1999] F.C.J. No. 1022.
...
It was also argued for the Minister that the onus is on the applicants to satisfy the medical
officer that Patrick's demands on publicly funded health and social services would not be excessive, and they failed to provide any evidence in that regard. That argument does not
address the fundamental problem in this case. The problem is that the record discloses no
evidence at all on the critical question of excessive demand.
[34] This approach was followed by Justice Lemieux in Redding v. Canada (Minister of Citizenship and Immigration, [2002] 1 F.C. 496 (T.D.) at paragraphs 35-38.
[35] In this case, the medical notification does not show that the medical officers considered the availability of services that the Applicant's son would require. The medical notification provides in part as follows:
If landed, the applicant would be eligible for, and likely require, a range of medical,
nursing and social services support which would include domiciliary nursing,
physiotherapy and likely repeat episodes of hospitalization for monitoring of the
underlying medical condition....The applicant would also require assisted transport.
The requirement for this degree of health and social services support would be
significantly greater than that of the average Canada and would be deemed excessive.
[36] There is nothing else in the record to show that the supply of these identified services was considered by the medical officers in reaching their opinion concerning "excessive demands". The medical notification also does not address the likely cost of these identified services, regardless of their availability in Canada.
[37] The test for exclusion on medical grounds according to the Act is not simply that a person has a disease, disorder or disability. The statutory language requires a finding that such condition will likely cause excessive demands upon health or social services in Canada. Further, a finding must be grounded in evidence that shows consideration of the underlying question of the supply and demand of the contemplated necessary services relative to a particular condition. The record in this case discloses no evidence of supply and demand of the services outlined as necessary for the Applicant's son.
[38] The adjective "excessive" suggests that a comparison is to be made with a normative standard, concerning the required health and social services. In this case, there is no evidence that either the medical officers or the Visa Officer attempted to make such comparison. For that reason, the application for judicial review will be allowed and the matter will be remitted for reconsideration, first by different medical officers and then by a different visa officer.
[39] Counsel advised that there is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted for reconsideration, first by different medical officers and then by a different visa officer.
There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4207-01
STYLE OF CAUSE: PIL GYO HEO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JANUARY 22, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: TUESDAY, JANUARY 28, 2003
APPEARANCES BY: Mr. Marvin Moses
For the Applicant
Ms Marie-Louise Wcislo
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD: Marvin Moses
Barrister & Solicitor
480 University Ave., Suite 610
Toronto, Ontario
M5G 1V2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030128
Docket: IMM-4207-01
BETWEEN:
PIL GYO HEO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER