Date: 20000601
Docket: IMM-4856-99
BETWEEN:
SHAHID HASAN KHAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision dated August 19, 1999, wherein Irma Roa, Immigration officer at the Canadian Consulate General, Los Angeles, (the "visa officer") refused the application of Shahid Hasan Khan (the "Applicant") for permanent residence in Canada.
[2] The Applicant is a resident of Pakistan. On November 11, 1995, he filed an application for permanent residence in Canada under the independent category. His wife, and daughter were included as dependants.
[3] On August 28, 1996, the Khans had another child, Abdullah Shahid Hasan Khan Shamsul (the "child"). On March 19, 1997, documentation was filed to include the child in the application for permanent residence. The child was born with Downs Syndrome and had certain related cardiovascular difficulties.
[4] On March 24, 1999, Dr. Waddell, a medical officer with Immigration Services, completed a Medical Notification Form stating that, in his opinion, the child would need a "prolonged support structure" and would "likely place excessive demands" on health and social services in Canada. On April 7, 1999, Dr. Saint-Germain, also with Immigration Health Services, concurred with Dr. Waddell"s opinion.
[5] On May 3, 1999, the visa officer informed the Khan family that the child would be found inadmissible for medical reasons unless they could provide further medical information to respond to the conclusion contained in the Notification Form.
[6] On August 19, 1999, Officer Roa informed the Applicant that the application for permanent residence to Canada had been refused because of the child"s medical inadmissibility.
[7] The letter sent by the visa officer dated May 3, 1999, invited the Applicant to respond to the description of the dependant"s medical condition. It did not invite the Applicant to make submissions with regard to the finding that the child would cause excessive demand on social services.
[8] In Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62 (T.D.), Madam Justice Reed allowed an application in circumstances somewhat similar to those in the present application. Madam Justice Reed found that the letter notifying the applicant of an opportunity to submit information was faulty in that it only provided the applicant a chance to provide additional medical evidence.
[9] Madam Justice Reed opined that the applicant should have been given a chance to respond to the conclusion regarding excessive demands. She also noted the fact that the material on which this conclusion with regard to excessive demand had been based had not been disclosed to the applicant. Accordingly, it was impossible for the Applicant to respond to the opinion that the Applicant"s dependant would make excessive demands on the social system. Madam Justice Reed wrote:
| The issues are:__(1) whether the applicant was given an adequate opportunity to respond to the assessment that Kar Yei's admission would cause excessive demand on social services (adequate in terms of the notice given as to the type of information that could be submitted and by what route; adequate in terms of being provided with sufficient information about the basis of the decision to enable a meaningful response); (2) whether the departmental medical officers erred in refusing to consider Kar Yei's particular situation; (3) whether the opinion that Kar Yei's admission would cause excessive demand on social services was patently unreasonable. It only becomes necessary, for the reasons that follow, to consider the first two issues. |
| With respect to the first issue, the June 14, 1996 notification letter invites additional medical information only, and it requires that that be submitted through the Hong Kong doctor. Requiring an applicant to channel information concerning whether a disability is likely to cause excessive demand on Canadian social services through a Hong Kong physician, who presumably will have little knowledge about that subject, is, at least, a curious procedure. More importantly, however, the letter invites the submission of medical information only. The letter that was sent appears to be a form letter designed for the situation in which a person's medical diagnosis is in issue. That was not the situation in this case. The letter should have provided for the submission of response information concerning the excessive demand aspect of the opinion. |
| 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. |
| 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). |
| In this case the non-disclosure of information left one potentially relevant matter unexplored:_ _apart from education up to the age of sixteen, or perhaps nineteen, are Canadian residents, who can afford to do so, required to pay for some or all of the social services that have been identified as relevant to Kar Yei's situation. When Dr. Bernstein was asked whether people could receive the services without paying, he answered yes. He, however, was not knowledgeable about the relevant Ontario legislation. This is understandable since he is a physician and not a lawyer. Dr. Bernstein referred to the Developmental Services Act, 1974. That legislation is now R.S.O. 1990, c. 11, as amended. |
| A review of that Act and the Regulations promulgated thereunder leaves the impression that Canadian residents who are able to do so are required to pay for the social services that are in question. Section 31 of the 1974 Act, for example, provides for payment by the Public Trustee from an incompetent's estate of the proper charges for the person's maintenance in a care facility. Sections 15 and 16 of the Developmental Services Regulations, R.R.O. 1990, No. 272, provide that when an application for admission to a facility or for services is made, the Director or Administrator as the case may be is to determine whether the person is eligible and whether they are able to contribute to all or any part of the cost thereof.__The extent to which individuals are expected to pay for the service, if they can do so, is relevant in the context of an opinion that assesses "excessive demand" by reference to the cost to the public purse. |
| As noted, the applicant was precluded from responding in a meaningful way to the opinion that the admission of his daughter would create excessive demands on social services in Canada because information necessary to allow for such was not disclosed. Thus a breach of the rules of natural justice, or fairness, occurred. |
| Having come to this conclusion, it is not, strictly speaking, necessary to consider the other issues that counsel raised. I do note, however, that under subparagraph 19(1)(a)(ii), it is the admission of the individual that is to be assessed in determining whether excessive demands would be or might reasonably be expected to arise. I read that provision as requiring a consideration of the individual's particular circumstances, including in this case the applicant's offer to set up a trust fund. |
| Counsel for the respondent argues that individual circumstances (particularly above average financial resources) should not be taken into account when assessing medical inadmissibility because our medical and social services are predicated on the principle that all individuals are equally entitled, and that advantages should not accrue in these areas to some individuals simply because they are wealthier than others. The force of that argument is strong. However, the category under which the applicant has been approved for permanent residence status is the self-employed category, that is, he has been approved because of his financial resources and entrepreneurial experience. There does seem to be an incongruity between admitting someone as a permanent resident because he has significant financial resources but refusing to take into account those same resources when assessing the admissibility of a dependent. This is particularly true if Canadian residents themselves must pay for the social services if they can afford to do so. |
| As indicated above, I do not propose to consider the proper statutory interpretation of the concept "excessive demands" ("un fardeau excessif").__Whether cost alone is a sufficient criteria, whether availability is also relevant, whether "excessive" should be interpreted as requiring an order of magnitude beyond merely "any amount above normal" are all questions that I do not find it necessary to consider in order to dispose of this application. |
| For the reasons given the application is allowed and the decision of August 19, 1996, will be quashed. Since both counsel asked an opportunity to make representations as to whether a question should be certified after reasons were issued, a final order will be entered later.1 |
[10] In light of both Wong, supra, and the evidence before me, I am of the opinion that the application for judicial review should be granted.
[11] Counsel for the parties have seven days following their receipt of these reasons to request that a question be certified.
| J.F.C.C. |
OTTAWA, Ontario
June 1, 2000
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