Date: 20030331
Docket: IMM-5547-01
Citation: 2003 FCT 378
BETWEEN:
MOUNG SUN LIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.
[1] This is an application for judicial review of the decision of Designated Immigration Officer Hafterson (the "officer") rendered October 29, 2001, which refused Mr. Moung Sun Lim's application for permanent residence. The refusal was based on the conclusion that the applicant's daughter was medically inadmissible under the Immigration Act, R.S.C. 1985, c. I-2 (the "Act"). The applicant seeks an order quashing the officer's decision, an order for a writ of mandamus directing the respondent to process his application for permanent residence, a declaratory order that he has met the requirements of the Act and costs.
FACTS
[2] The applicant is a citizen of Korea. In November 1999, he applied for permanent residence in Canada in the "entrepreneur" category. He was refused by letter dated October 29, 2001, on the ground that his daughter, Ji Hyun, was medically inadmissible under s. 19(1)(a)(ii) of the Act. The officer determined that Ji Hyun's admission to Canada would likely cause excessive demands on health or social services.
[3] Ji Hyun was born in 1992. She had a cleft palate and lip. She has undergone surgery four times since birth to correct physical deformities.
[4] As part of the application process, Ji Hyun underwent medical testing on November 1, 2000, in Korea. The applicant was then sent a "fairness letter" dated December 15, 2000, inviting him to submit further evidence concerning the medical condition of his daughter. In response, the applicant filed additional letters and medical reports, including an assessment by Dr. Roger Freeman.
[5] The applicant states that his daughter is not developmentally delayed or mentally handicapped, although she is afraid of doctors and socially shy due to her disfigurement. He states that she is expected not to require further surgery nor further medical attention, except for some orthodontic work and speech therapy both of which, on the evidence, are not covered under the B.C. Medical Plan.
OFFICER'S DECISION
[6] The officer's letter of October 29, 2001, stated that the applicant's daughter, Ji Hyun, was medically inadmissible, coming within the class of persons described in s. 19(1)(a) of the Act, as she suffers from developmental delay. The officer continued:
As a result of the nature, severity or probable duration of this condition, in the opinion of a medical officer concurred in by at least one other medical officer, her admission would cause or might reasonably be expected to cause excessive demands on health or social services.
[7] The officer included with her letter a copy of the Citizenship and Immigration Canada ("CIC") medical notification and diagnosis by Medical Officer Dr. Saint-Germain and reviewed by Dr. Waddell.
[8] Dr. Saint-Germain concluded that Ji Hyun has "delayed milestones" and at age eight had the mental capacity of a six-year-old child. She was said to be passive, withdrawn, anxious, her communication skills lacking and her answers inappropriate. Psychometric testing indicated borderline intelligence. Dr. Saint-Germain concluded:
If admitted to Canada, [Ji Hyun] and her supporting family where applicable will be eligible for, and will probably require, a variety of social services such as speech therapy, special education, continuous training to enhance her ability to carry out activities of daily living, lifestyle support for permanent residence with kin or for movement to out-of-home care settings, respite care for parents and ultimately vocational training. With reference to departmental condition reports, these services are expensive and cost significantly more than the amount spent annually on the average Canadian. Due to probable social and educational requirements, the applicant's admission would cause or might reasonably be expected to cause excessive demands on social services. Therefore, the applicant is deemed inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act.
ISSUE
[9] Did the visa officer err in law or fact in refusing the applicant's application on the ground that his dependent daughter would create excessive demand on Canadian health or social services?
STANDARD OF REVIEW
[10] The standard of review applicable to the decision of a visa officer was recently the subject of comment by the Federal Court of Appeal in Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312, [2001] F.C.J. No. 1575 (QL). Malone, J.A. stated, at para. 12:
An application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be made on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, courts should not interfere (Maple Lodge Farms Limited v. Government of Canada et al [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada, [1996] F.C.J. No. 696 (F.C.A.).
[11] In Dev. v. Canada (Minister of Citizenship and Immigration), 2002 FCT 536, [2002] F.C.J. No. 686 (QL), Dawson J. noted that there is some conflict in the case law concerning the appropriate standard of review. She stated, at para. 9:
Any doubt as to the relevance of Maple Lodge, supra, after the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 appears to have been addressed by the Supreme Court in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 where the Court wrote at paragraph 37 that:
... Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors...
[12] I am satisfied that the applicable standard of review is that expressed by the Court of Appeal in Jang, supra. I will review the decision of the officer with a view to determining whether it has been made in good faith, in accordance with the principles of natural justice, and to ensure that reliance has not been placed upon irrelevant considerations.
STATUTORY SCHEME
[13] Paragraph 19 of the Act provides:
|
19. (1) Inadmissible persons - 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) Personnes non admissibles - 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; |
|
|
|
|
Subsection 22(1) of the Immigration Regulations, 1978 (the "Regulations"), provides:
|
For the purpose of determining whether any person is or is likely to be a danger to public health or to public safety or whether the admission of any person would cause or might reasonably be expected to cause excessive demands on health or social services, the following factors shall be considered by a medical officer in relation to the nature, severity or probable duration of any disease, disorder, disability or other health impairment from which the person is suffering, namely, (a) any reports made by a medical practitioner with respect to the person; (b) the degree to which the disease, disorder, disability or other impairment may be communicated to other persons; (c) whether medical surveillance is required for reasons of public health; (d) whether sudden incapacity or unpredictable or unusual behaviour may create a danger to public safety; (e) whether the supply of health or social services that the person may require in Canada is limited to such an extent that (i) the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents, or (ii) the use of such services may not be available or accessible to the person; (f) whether medical care or hospitalization is required; (g) whether potential employability or productivity is affected; and (h) whether prompt and effective medical treatment can be provided. |
|
Afin de pouvoir déterminer si une personne constitue ou est susceptible de constituer un danger pour la santé ou la sécurité publiques ou si l'admission d'une personne entraînerait ou pourrait entraîner un fardeau excessif pour les services sociaux ou de santé, un médecin doit tenir compte des facteurs suivants, en fonction de la nature, de la gravité ou de la durée probable de la maladie, du trouble, de l'invalidité ou de toute autre incapacité pour raison de santé dont souffre la personne en question, à savoir : a) tout rapport ayant trait à la personne en question rédigé par un médecin; b) la mesure dans laquelle la maladie, le trouble, l'invalidité ou toute autre incapacité pour raison de santé est contagieux; c) si la surveillance médicale est exigée pour des raisons de santé publique; d) si l'incapacité soudaine ou imprévisible ou un comportement inhabituel peut constituer un danger pour la sécurité publique; e) si la prestation de services sociaux ou de santé dont cette personne peut avoir besoin au Canada est limitée au point (i) qu'il y a tout lieu de croire que l'utilisation de ces services par cette personne pourrait empêcher ou retarder la prestation des services en question aux citoyens canadiens ou aux résidents permanents, ou (ii) qu'il est possible qu'on ne puisse offrir ces services ou que ceux-ci ne soient pas accessibles à la personne visée; f) si des soins médicaux ou l'hospitalisation s'impose; g) si l'employabilité ou la productivité éventuelle de l'intéressé est compromise; et h) si un traitement médical prompt et efficace peut être fourni.
|
|
|
|
|
Subsection 114(1) of the Act provides:
| 114. (1) The Governor in Council may make regulations
...
(m) prescribing the factors to be considered in determining whether, for medical reasons, any person is or is likely to be a danger to public health or to public safety; |
|
114. (1) Le gouverneur en conseil peut, par règlement :
...
m) établir des critères permettant de déterminer si une personne constitue ou constitura vraisemblablement, pour des raisons d'ordre médical, un danger pour la santé ou la sécurité publiques; |
|
|
|
|
ANALYSIS
[14] The Federal Court of Appeal considered the meaning of "excessive demands on health and social services" in Deol v. Canada (Minister of Citizenship and Immigration), 2002 FCA 271, [2002] F.C.J. No. 949 (QL). Evans J.A. noted, at para. 20, that the jurisprudence of this Court suggests that both cost and availability of services are relevant to a determination of excessive demand, and evidence relating to both must be considered by the medical officer. However, he stated that cost alone can constitute "excessive demands" under s. 19(1)(a)(ii) of the Act. Further, Evans J.A. stated, at para. 24:
...[I]t 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.
[15] At para. 30 of his reasons in Deol, supra, Evans J.A. agreed with a previous Trial Division decision that held that "excessive" demands for social or health services "are those that exceed normal demands, provided that the margin is significant. What is 'significant' in this context calls for an assessment of all the circumstances".
[16] In Poon v. Canada (Minister of Citizenship and Immigration), (2000) 198 F.T.R. 56, [2000] F.C.J. No. 1993, Pelletier J. quoted from Ma v. Canada (Minister of Citizenship and Immigration), (1998), 140 F.T.R. 311, [1998] F.C.J. No. 27, in noting that the expert opinions of medical officers are not open to review by the Federal Court, but the opinions concerning the issue of excessive demand may be reviewed where there is incoherence or inconsistency, or absence of supporting evidence.
[17] In Poon, supra, Pelletier J. quashed the decision of a visa officer, finding that she had based her decision on an invalid medical opinion. The medical officer had determined that the social services required for the applicant's child, who had mild mental retardation, were "very expensive modalities". Pelletier J. held that this conclusion was based on a deficient evidentiary base.
[18] In Tong v. Canada (Minister of Citizenship and Immigration), (1998) 153 F.T.R. 115, [1998] F.C.J. No. 1397 (QL), Gibson J. held, at para. 10, that the decisions of medical officers are reviewable "where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice". He found that the medical opinion was invalid because "it was not based on a consideration of all of the evidence with respect to the personal circumstances of the applicant and his family".
[19] In the present case, the medical officers were in receipt of material concerning the availability of social services which would be necessary for the child, in addition to the "Developmental Disabilities Condition Report" prepared by the Department. They determined that there was sufficient information to support their opinion concerning excessive demand.
[20] In the medical notification form the medical officer indicated that the Ji Hyun would probably require:
[A] variety of social services such as speech therapy, special education, continuous training to enhance her ability to carry out activities of daily living, lifestyle support for permanent residence with kin or for movement to out-of-home care settings, respite care for parents and ultimately vocational training. With reference to departmental condition reports, these services are expensive and cost significantly more than the amount spent annually on the average Canadian. Due to the probable social and economic requirements, the applicant's admission would cause or might reasonably be expected to cause excessive demands on social services. [Emphasis added]
[21] In Dr. Waddell's affidavit, at page 6, he states:
It is the combination of special education for children with low normal intelligence and speech therapy for a serious physical disability that led us to the conclusion that this girl was medically inadmissible for anticipated excessive demand on social and educational services.
[22] The medical officers relied on, among others, the expert report of psychiatrist Dr. Pyo Han Kim, dated October 2000. A subsequent report, also prepared by Dr. Kim, dated November 23, 2000, provided the respondent with comprehensive neuropsychiatric assessment of Ji Hyun. It is useful to reproduce the following bullets as they are presented in this second report:
· Amount of self-care of which she is capable, ability to perform the activities of daily living and practical skills (work record when dealing with adults): She has some problems in face of complex, difficult situation because her IQ is lower than average, but currently, she is doing well in school life and general affairs without help of parents and adult.
· Any neuro-behavioural problems (temper, outbursts, autistic behaviours, seizures etc.): none.
· Social adjustment to life in Canada (applicable only if living in Canada) : not applicable.
· Current need for continuous supervision and specialized vocational training. Are these services and facilities easily available or are there Canadians waiting for this. What is the waiting period? What are costs of the services involved? (Applicable only if living in Canada) : No need for continuous supervision and specialized vocational training. We expect she can go to the usual elementary school in Canada.
· Ability to count, handle money, read or write : She can read, write and calculate in simple affairs but is hard to do so in difficult affairs and has no experience of calculation using money.
· Orientation to time and place : intact.
· Need for institutional care, presently or in the future : no need.
· Likelihood of applicant's being capable of self-support without family assistance : Though she has borderline IQ, she is currently going to general elementary school and I think she can support herself without others help if we give her continuous concern.
· Check of special services required : No need for specific service but continuous love and encouragement is needed.
· Physiotherapy (hours per week) : no need.
· Occupational therapy (hours per week) : no need.
· Speech therapy (hours per week) : no need.
· Other therapy (hours per week) : She needs education to get self-confidence to the social life, because she has borderline IQ, shy and introvert character.
[Emphasis added]
[23] If the medical officers relied on Dr. Kim's assessment, it is difficult to understand how they could conclude that the applicant's daughter, Ji Hyun, would require the extensive social services outlined in the diagnosis contained in the December 5, 2000 medical notification. Specifically, Dr. Kim's report states that she requires none of these services and that she can attend, "...the usual elementary school in Canada." With respect to whether other therapy is required, Dr. Kim states she needs "education" to enhance her self-confidence because she is shy, introverted and has a borderline IQ.
[24] Upon reviewing this evidence, I find that the medical officers either misconstrued Dr. Kim's report or completely ignored it. I can only conclude that their diagnosis is not supported by the evidence and is therefore suspect. The medical opinion is inconsistent with the evidence, noted above, on which it is purportedly based.
[25] The applicant further argues that the cost profiles relied on by the medical officers contained in the "Developmental Disabilities Condition Report" are based exclusively on the needs of people with "mild mental retardation". The applicant contends that his daughter is not mentally retarded and that this fact is even conceded by Dr. Waddell who, on cross-examination, stated that "...The girl is not mentally retarded. She has low average or borderline intelligence." Consequently, the applicant submits that the evidence relied upon by Dr. Waddell has little application to an assessment of Ji Hyun and therefore the opinion is based upon irrelevant evidence.
[26] There is conflicting evidence as to Ji Hyun's IQ. Whether her IQ is 70 or 79 is not materially significant. The evidence clearly establishes that she has borderline intelligence, not mental retardation. This fact is not disputed.
[27] The developmental disabilities report relied on by the respondent and the cost profiles contained therein state that an individual with mild mental retardation will need special assistance with education and vocation. Given that Dr. Waddell is of the opinion that Ji Hyun is not mentally retarded, I conclude that the developmental disabilities report is not relevant to an assessment of excessive demand in the present case.
[28] The judgment in Deol, supra, suggests that the record must indicate that the medical officer considered evidence relating to cost and availability. The case law also requires that there be some relevant evidence before the medical officers when they made their decision concerning excessive demand. In the present case, the medical officer who reviewed the decision relied on costs profiles in the "Developmental Disabilities Condition Report" that essentially analyse a level of condition that is different from and more severe than that of the applicant's daughter. Therefore, I find that the evidence considered was not relevant to a determination concerning the applicant's daughter would create excessive demands on health and social services.
[29] The visa officer stated in her affidavit that she was satisfied that the medical notification reached by Dr. Saint-Germain and concurred by Dr. Waddell was reasonable. I conclude that the medical notification failed to take into account the report of Dr. Kim concerning Ji Hyun's prognosis and is inconsistent with the evidence. I further conclude that the medical notification was based on a consideration of irrelevant evidence. The officer therefore erred by basing her decision on such a flawed medical report.
[30] For the above reasons this application for judicial review will be granted.
[31] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven (7) days of receipt of these reasons. Each party will have a further period of three (3) days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
March 31, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5547-01
STYLE OF CAUSE: Moung Sun Lim v. M.C.I.
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: February 4, 2003
REASONS FOR ORDER AND ORDER: Blanchard J.
DATED: March 31, 2003
APPEARANCES:
Mr. Peter d. Larlee FOR APPLICANT
Ms. Brenda Carbonell FOR RESPONDENT
SOLICITORS OF RECORD:
Larlee & Associates FOR APPLICANT
Vancouver, B.C.
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
Vancouver, B.C.