Digests

Wong v. Canada (Minister of Citizenship and Immigration)

IMM-6060-99

2002 FCT 625, McKeown J.

31/5/02

12 pp.

Judicial review of visa officer's refusal of permanent residence--Applicant's daughter, born in 1981, suffers from mild to moderate mental retardation, Down's Syndrome-- Two prior applications for permanent residence refused-- Application for judicial review of second decision allowed on ground breach of procedural fairness as not giving applicant answers to questions about doctor's opinion daughter's admission to Canada would place "excessive demands" on Canadian social services--Reed J. also commenting in obiter on need to consider individual's particular circumstances-- Canadian medical officer subsequently addressing nine specific questions posed previously by applicant's counsel, explaining how each considered on facts of applicant's daughter's own case--Not addressing what specific services may be needed and for how long--Also not lengthy examination of probability of need of such services-- Applicant's counsel responding that disagreed with answers to his questions--Visa officer finding applicant's daughter's admission to Canada would result in excessive demands on Canadian social services, rendering family inadmissible pursuant to Immigration Act, s. 19(1)(a)(ii)--Application allowed--With respect to social services, one must be considered eligible, and such application entails consideration of whether applicant able to contribute to all or any part of cost thereof: Developmental Services Act, General Regulation, Education Act--Applicant likely to be required to pay for any services used because has means to do so--Thus no demands caused by admission of applicant with respect to social services--Case law divided on question of whether applicant's wealth should be considered in assessing excessive demands on social services--While Pelletier J. finding wealth not relevant in Poon v. Canada (Minister of Citizenship and Immigration) (2000), 198 F.T.R. 56 (F.C.T.D.), Reed J. finding incongruous to admit permanent resident because has significant financial resources, but then refuse to consider same resources when assessing admissibility of dependant in Wong v. Canada (Minister of Citizenship and Immigration) (1998), 141 F.T.R. 62 (F.C.T.D.)--Reed J.'s approach would not apply to medical services--Respondent submitting services in North York and Ontario should not be considered because applicant free to move around within Canada--Poste v. Canada (Minister of Citizenship and Immigration) (1997), 5 Admin. L.R. (3d) 69 (F.C.T.D.) holding medical opinion must be founded firmly on individual's personal circumstances and all circumstances of case, including degree of family support, particular resources of community--Visa officer referred to number of social services not appearing anywhere in evidence--Assumed such services available, provided free of charge, or that shortage of these services-- Based refusal on assumption applicant's dependant will be eligible for such services to be provided to her free of charge despite provision in Developmental Services Act, Education Act for contribution from parents or her trust fund--Also assumed daughter will likely use these services, even though evidence indicated would not--Important that here talking about social, not medical, services--Not permitted to obtain medical services on private basis in Canada, but no such restriction on social services--Indeed, persons who can afford to pay for social services must do so--Reviewable error as no evidence medical officers or visa officer considered specific services available in particular community where applicant chose to reside--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii)--Developmental Services Act, R.S.O. 1990, c. D.11--Developmental Services Act General Regulation, R.R.O. 1990, Reg. 272--Education Act, R.S.O. 1990, c. E.2.