IMM-741-96
Wan Chen Fei (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Feiv. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Heald D.J."Toronto, May 22; Ottawa, June 30, 1997.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Application for permanent residence denied as applicant's dependent daughter medically inadmissible under Immigration Act, s. 19(1)(a)(ii) — Admission expected to cause excessive demands on health, social services — Visa officer's refusal letter based on medical officers' opinion — Valid medical opinion under s. 19(1)(a)(ii) binding on visa officer — Medical officers indicating criteria in medical narrative but failing to seek necessary information — Erred in applying statutory test under s. 19(1)(a)(ii).
This was an application for judicial review of a visa officer's decision denying a permanent residence application on the ground that one of applicant's dependent children was medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act. The applicant's daughter was examined medically in June 1995; shortly after, medical officers at the Canadian Commission in Hong Kong produced an opinion under that provision, stating that the child has a moderate degree of mental retardation, that she requires extensive social and educational support services as well as constant supervision and that she will likely place excessive demand on social services. The dominant fact in the medical officers' minds was that mentally retarded children require increased expenditure of public funds; availability of services, per se, was not an issue. Based on that opinion, the visa officer sent the applicant a refusal letter stating that his dependent daughter was inadmissible as a member of the class of persons described in subparagraph 19(1)(a)(ii) of the Act. Three issues were raised: (1) whether the visa officer erred in failing to obtain the necessary information to ensure that the medical opinion was reasonable; (2) whether the medical officers made a reviewable error in determining that admission to Canada of the applicant's child would result in an "excessive demand" on social services; (3) whether there was a breach of procedural fairness due to the fact that the visa officer declined to consider the medical facts, while the medical officers failed to consider the other information available to the visa officer.
Held, the application should be allowed.
(1) Under paragraph 19(1)(a) of the Act, Parliament placed the decision-making authority for medical inadmissibility in the hands of medical officers. Once the latter have formed a legally sound opinion under subparagraph 19(1)(a)(ii), the subject person is medically inadmissible. The visa officer has no statutory authority to alter this opinion, although he may allow an exception based on humanitarian and compassionate grounds. However, a reviewing court is competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. A visa officer has no independent authority or duty to review the reasonableness of a medical opinion. When a valid medical opinion is formed under subparagraph 19(1)(a)(ii), that opinion is binding on the visa officer. However, there is an error of jurisdiction where an opinion involves a patently unreasonable error of fact, is inconsistent, incoherent or contrary to the principles of natural justice. If the visa officer applies such an invalid opinion, he commits an error in law, and his decision may be reviewed by the Federal Court on that basis.
(2) The finding of the medical officers was based primarily on the ground that a mentally retarded child would require educational costs higher than those required for other children. The doctors considered only the cost of extra educational services; they neither considered the supply of such services nor obtained relevant information respecting the need for constant supervision. The applicant had no meaningful opportunity to bring to the attention of the medical officers the facts relating to excessive demand, because he was left in the dark as to what issues he should respond to in addressing the preliminary medical opinion. At no point in the conduct of this file was the applicant made aware of the criteria being employed by the medical officers in forming their opinion. If not a breach of natural justice, such a practice could be regarded as unfair. The medical officers erred in applying the statutory test. It was an error to state through the medical narrative that the reasons for exclusion were extensive social and educational support services, the need for constant supervision, and the expense and supply of these services, while they conceded that information highly relevant to determination of these factors was not before them. Moreover, they did not take effective measures to obtain that information. There was no evidence before the medical officers to support a finding of constant supervision, because there was no evidence of a failure of family support. The medical opinion set out in the medical narrative could not be justified because of the failure of the medical officers to obtain or seek the information necessary for a fair evaluation of the grounds which formed the basis for their inadmissibility decision.
(3) Since the visa officer does not have to ensure that the medical opinion was reasonable and cannot review the medical aspect of such opinion, it is not necessary for him to review the medical file. As to whether the medical officers should consider the contents of the visa file, it is necessary for them to consider any evidence which is relevant to the issue of excessive demand. In this case, the doctors indicated criteria in the medical narrative, but did not seek the necessary information to fairly consider them. Neither was the applicant given a fair opportunity to provide such information. The medical opinion supporting the impugned decision was defective because the medical officers erred in applying the test set out in subparagraph 19(1)(a)(ii) of the Act.
statutes and regulations judicially considered
Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).
Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(a)(ii), 83 (as am. by S.C. 1992, c. 49, s. 73).
Immigration Regulations, 1978, SOR/78-172.
cases judicially considered
applied:
Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139; 29 Imm. L.R. (2d) 1 (F.C.T.D.); Litt v. Canada (Minister of Citizenship and Immigration) (1995), 93 F.T.R. 303; 26 Imm. L.R. (2d) 153 (F.C.T.D.); Gao v. Canada (Minister of Employment & Immigration) (1993), 14 Admin. L.R. (2d) 233; 61 F.T.R. 65; 18 Imm. L.R. (2d) 306 (F.C.T.D.); Ajanee v. Canada (Minister of Citizenship and Immigration) et al. (1996), 110 F.T.R. 172; 33 Imm. L.R. (2d) 165 (F.C.T.D.); Ludwig v. Canada (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271; 33 Imm. L.R. (2d) 213 (F.C.T.D.).
distinguished:
Jiwanpuri v. Canada (Minister of Employment & Immigration) (1990), 10 Imm. L.R. (2d) 241; 109 N.R. 293 (F.C.A.); Deol v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 1; 145 N.R. 156 (F.C.A.).
considered:
Stefanska et al. v. Minister of Emploment and Immigration (1988), 17 F.T.R. 84 (F.C.T.D.); Jaferi v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 142 (F.C.T.D.); Gingiovenanu v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 76; 31 Imm. L.R. (2d) 55 (F.C.T.D.).
referred to:
Brar v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1690 (T.D.) (QL).
APPLICATION for judicial review of a visa officer's decision denying a permanent residence application on the ground that one of the applicant's dependent children was medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act. Application allowed.
counsel:
Mary Lam and Cecil L. Rotenberg for applicant.
Cheryl Mitchell for respondent.
solicitors:
Cecil L. Rotenberg, Don Mills, Ontario, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Heald D.J.: This is an application for judicial review of a decision of a visa officer, S. Tai, dated November 24, 1995. By that decision, the visa officer denied the application for permanent residence of the applicant on the ground that the applicant's dependent daughter, Chien-Chien, was medically inadmissible pursuant to subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C., 1985, c. I-2 (the Act). The applicant seeks an order of certiorari quashing the decision; an order of mandamus directing the respondent to process the application for permanent residence pursuant to the Act and the Immigration Regulations, 1978, SOR/78-172 (the Regulations) as they were at the date of the application for judicial review; an order of mandamus for such processing to take place within ninety days; directions that such review be based only on the existing medical information before the respondent, and costs.
The decision a quo was in the form of a refusal letter which read as follows:
I regret to inform you that your dependant FEI, Chien-Chien comes within the inadmissible class of persons described in paragraph 19(1)(a)(ii) of the Immigration Act, 1976, in that your dependant is suffering from a 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 her admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services in Canada.
The letter also indicated that the visa officer had determined, upon consideration of possible humanitarian and compassionate factors, that there were insufficient grounds to warrant special consideration.
It is the process by which this determination was made, and the reasonableness of the decision itself which are challenged in this proceeding. The applicant makes three submissions. First, that the visa officer failed to satisfy a duty to obtain the necessary information to assess the reasonableness of the medical opinion. Second, that the medical officers erred in interpreting "excessive demand". Third, that there was a breach of procedural fairness by virtue of the failure of the visa officer to consider the medical file, and because the medical officers failed to consider the visa office file as well.
PRELIMINARY MATTERS
At the commencement of this hearing, the applicant brought a motion to strike out paragraphs 2, 6, 7, 8, 9, 10 and 11 of the affidavit of Dr. Gordon Hutchings, sworn April 24, 1996 and paragraphs 4, 5, 6, 12, 13, 14 and 15 of the affidavit of Dr. Theodore Axler, sworn April 15, 1996. The principal basis for the motion was because the evidence set out in these paragraphs was said to have been inadmissible as not having been before the visa officer at the time of her decision.
In Jiwanpuri v. Canada (Minister of Employment & Immigration) (1990), 10 Imm. L.R. (2d) 241, the Federal Court of Appeal examined the standard by which the Immigration Appeal Board (the Board) must consider an appeal of the decision of a visa officer to reject a sponsored application due to the medical inadmissability of a dependant under subparagraph 19(1)(a)(ii) of the Act. At pages 247-248, the Court noted:
And although the Board is bound to assess that reasonableness as of the time when the visa officer made his decision, since it is that decision which is being appealed (cf. Mohamed v. Canada (Minister of Employment & Immigration), [1986] 3 F.C. 90, 68 N.R. 220), it can do so with the help of any relevant evidence that may be adduced before it. The Act having provided for an appeal on any ground of law or fact . . . which could be supported by evidence found relevant and trustworthy . . . it can hardly be assumed that the reasonableness of the opinion was to be assessed strictly on the basis of the facts as they appeared to the visa officers or the medical officers without any possibility of showing that those facts were wrongly seen or interpreted, or that they were insufficient to lead to the conclusion drawn. The role of the Board could not be so limited and its discretion so fettered.
The present case is distinguishable from Jiwanpuri since this Court is not conducting judicial review of a tribunal which had exercised an appeal power given to it. I also note that both of the supporting affidavits were filed pursuant to the order of the Honourable Mr. Justice Gibson, dated 13 May 1996, in which he noted:
I am going to assume that Miss Mitchell and those who instruct her are well aware of the fact that the affidavits are to be restricted in their content to that which was before the visa officer at the time the decision was rendered. I take that as given.
Accordingly, neither party to this application is allowed to adduce substantive evidence which was not before the visa officer except in cases where the jurisdiction of the visa officer is challenged on grounds such as, for example, an allegation of bias. This is not the situation here. However, in this case the applicant challenges the medical opinion which supports the rejection of his immigration application. In such circumstances, it would be unfair and counterproductive to disallow evidence which seeks to explain the reasonableness of that medical opinion. I am not prepared to exclude evidence by the medical officers which explains their opinion, provided that such evidence represents their views as of the time the final opinion was given rather than at the point in time when the visa officer made the decision a quo.
With respect to the Dr. Hutchings affidavit, paragraphs 2, 6 and 10 thereof explain the considerations which he took into account in forming his medical opinion, which was then forwarded to the visa officer. Since this opinion is in support of the visa officer's decision, it is admissible. However, paragraphs 7, 8, 9 and 11 thereof are also the opinions of Dr. Hutchings. There is no proof that these opinions were held by him at the time when he gave his medical opinion. There is also no indication as to whether they played any role in the formation of that medical opinion. Accordingly, paragraphs 7, 8, 9 and 11 are inadmissible, in my view.
As to the Dr. Axler affidavit, paragraphs 4, 5, 6 and 12 are admissible since those factors were actually taken into consideration in the formation of his medical opinion. I have decided to allow paragraphs 13 and 15, as well, but assign them weight only to the extent that they help to explain the approach which the doctor took in forming his medical opinion. Paragraph 14 is presented as the present opinion of Dr. Axler and is therefore inadmissible.
I am also not prepared to admit the Medical Officer's Handbook, which the applicant sought to enter into evidence during the hearing, without adequate notice to the respondent. Counsel for the applicant was unable to produce a satisfactory explanation as to why this evidence was not entered in compliance with the rules.
FACTS
The applicant, an engineer, applied for permanent residence status in Canada on January 11, 1995 under the entrepreneur category. He noted on his application that he had a wife and five children, who would accompany him to Canada as dependents. He also noted clearly on that application that Fei, Chien-Chien, one of the twins was mentally retarded.
On June 7, 1995, Chien-Chien was examined medically by Dr. Teh Shou Feng in Taipei. The medical reports were forwarded to the Canadian Commission in Hong Kong. The medical officers at the Commission subsequently produced an opinion under subparagraph 19(1)(a)(ii) based on the following medical narrative, dated June 28, 1995:
MODERATE MENTAL RETARDATION I.C.D. #317
THIS 7 YEARS OLD CHILD HAS A MODERATE DEGREE OF MENTAL RETARDATION WITH AN I.Q. OF 35. SHE REQUIRES EXTENSIVE SOCIAL AND EDUCATIONAL SUPPORT SERVICES AS WELL AS CONSTANT SUPERVISION. THESE SERVICES ARE VERY EXPENSIVE AND OFTEN IN SHORT SUPPLY.
SHE WILL LIKELY PLACE EXCESSIVE DEMAND ON SOCIAL SERVICES AND SHE IS THEREFORE INADMISSIBLE UNDER SECTION 19(a)(ii) OF THE IMMIGRATION ACT.
ALSO HAS: SEIZURE DISORDER.
Accordingly, a letter, dated August 1, 1995, was sent to the applicant stating that Chien-Chien was suffering from a moderate degree of mental retardation with an IQ of 35. The letter stated that the inad-missability of Chien-Chien as a dependent would likely result in the refusal of the application. Thirty days was allowed for the applicant to submit further information, but the applicant obtained an extension of this deadline. The applicant was notified that a final decision would be made on November 6, 1995 based on the information available at that time.
In mid-October of 1995, the applicant, his wife and Chien-Chien travelled to Canada for a two-day examination by psychologist, Dr. Ford and psychoeducational consultant, Louise C. Ford, at Ford and Associates in Toronto. They produced a comprehensive report, dated 2 November 1995, based on a multi-disciplinary assessment. The report included, inter alia, the following conclusion:
In the opinion of the examiners, Chien-Chien is a good candidate for the existing educational and intervention programs in Ontario and/or British Columbia and as such does not present as an individual whose needs would place excessive demands on available social services in Canada.
This report was submitted to the Commission for Canada in Hong Kong by facsimile on November 2, 1995.
The comprehensive report of Dr. Ford was considered by the medical officers responsible for the original opinion. The medical officer, Dr. Axler noted on November 11, 1995:
Dr. Hutchings and I have carefully reviewed the additional information provided on this applicant (i.e. Psychological Assessment Report of Ford and Associates of Nov. 2 '95).
This confirms and validates our M-5 assessment of 28 June 95, which still stands.
The affidavit of Dr. Axler makes it clear that his assessment of excessive demand was made on the basis of cost rather than availability of services:
11. On November 9, 1995, we received a request to review additional documents and advise. These documents were sent by C. Rotenberg, Barrister and Solicitor and consisted specifically of a psychological assessment report by W.G. Ford, Ph.D. and Louise C. Ford, M.A.
12. I carefully reviewed this report. I determined that this report validated my initial assessment of June 28, 1995. It demonstrated that the daughter has limited intellectual abilities, limited education experiences, and language delays. She would require special educational placement and social support (for example, multi-disciplinary assessments, speech therapy, respite care and family counselling), which are expensive modalities. I therefore decided to maintain my assessments. I do not agree with the allegation in that report that an I.Q. score is invalid due to language differences. It remains possible to assess an individual's cognitive abilities notwithstanding language abilities. I passed this additional report to Dr. Hutchings for his review.
13. I was not made aware of the fact that the Applicant's wife intends to stay at home with his daughter. However, this fact would not have changed my opinion on excessive demand had I known about it.
. . .
15. I understand that the Applicant alleges that the North York Board of Education in Ontario does not usually have a waiting list. This specific fact was not given to me at the time of my decision. However, it would not have changed my opinion had I known about it. While it is true that the North York Board of Education may well at any given time have a place for a child with special education needs, providing this place costs a lot of money and resources. Any Canadian citizen and permanent resident has a right to publicly funded education, as per individual needs. Even without waiting lists, the mere placement of one child in a special educational support setting is more expensive than the placement of a child in a school system that lacks such special educational support services.
Portions of Dr. Hutchings' affidavit make similar observations. It is thus clear that the dominant fact in the medical officers' minds was that mentally retarded children require increased expenditure of public funds. Availability of services, per se, was not an issue. The doctors confirmed this fact under cross-examination. The ability of the family to care for the child at home was not an issue. Inquiry was not made into these matters, nor were they considered relevant by the medical officers. Neither medical officer actually examined the applicant's daughter.
The visa officer then sent to the applicant a refusal letter, dated November 24, 1995, stating that his dependent, Chien-Chien, was inadmissible as a member of the class of persons described in subparagraph 19(1)(a)(ii) of the Immigration Act, as she suffers "from a disease, disorder, disability or other health impairment as a result of which, in the opinion of a medical officer concurred in by at least one other medical officer her admission to Canada would cause or might reasonably be expected to cause excessive demands on health or social services in Canada". Accordingly, the application was denied. Attached to the refusal letter was the medical narrative of June 28, 1995, cited supra .
The visa officer stated during cross-examination that she did not, and was in no position to, review the medical information and form any opinion in respect to it. She stated that her opinion was not stated in the refusal letter because it is the standing policy at her office to send out a standard refusal letter for all medical refusal cases regardless of the medical condition in a particular case.
ISSUES
1. Did the visa officer err in failing to obtain the necessary information to ensure that the medical opinion was reasonable?
2. Did the medical officers make a reviewable error in determining whether the applicant's dependent child would produce an "excessive demand"?
3. Was there a breach of procedural fairness due to the fact that the visa officer declined to consider the medical facts, while the medical officers failed to consider the other information available to the visa officer?
ANALYSIS
1. The Duty of the Visa Officer
The question, as framed by counsel for the applicant, is whether the visa officer is under a duty to request and obtain the information necessary to confirm the reasonableness of the medical officers' opinion. In order to deal with this issue effectively, a review of the relevant jurisprudence is necessary.
On the issue of the standard of review of the visa officer in the circumstances of this case, I have reviewed the cases cited by counsel, with particular reference to Jiwanpuri, supra; Deol v. Canada (Minister of Employment & Immigration) (1992), 18 Imm. L.R. (2d) 1 (F.C.A.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.); Litt v. Canada (Minister of Citizenship and Immigration) (1995), 93 F.T.R. 303 (F.C.T.D.); Gao v. Canada (Minister of Citizenship & Immigration) (1993), 14 Admin. L.R. (2d) 233 (F.C.T.D.); Stefanska et al. v. Minister of Employment and Immigration (1988), 17 F.T.R. 84 (F.C.T.D.); Jaferi v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 142 (F.C.T.D.); Gingiovenanu v. Canada (Minister of Citizenship and Immigration) (1995), 102 F.T.R. 76 (F.C.T.D.); Ajanee v. Canada (Minister of Citizenship and Immigration et al.) (1996), 110 F.T.R. 172 (F.C.T.D.); and Ludwig v. (Minister of Citizenship and Immigration) (1996), 111 F.T.R. 271 (F.C.T.D.). I have also considered my reasons in Brar v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1690 (T.D.) (QL).
In Jiwanpuri, Marceau J.A., writing for the Court, noted the lack of expertise of the Board with respect to medical diagnoses. It was held that the Board should not choose between the opinion of the medical officers and that of other doctors. However, the Board should, nevertheless, test the reasonableness of the opinion of the medical officers. At page 247, it was stated:
The members of the Board do not have the expertise required to question the correctness of the medical diagnosis reached by the officers. In fact, I am of the view that, even with the help of medical witnesses, it is not the function of the Board to do so. The Board is not expected to make a choice between the written opinion of the medical officers and that of other doctors as to the diagnosis of a medical condition suffered by an applicant . . . .
However, this Court has found that it is within the province of the Board to inquire into the reasonableness of the opinion of the officers (cf. Ahir v. Canada (Minister of Employment & Immigration) (1983), 49 N.R. 185, 2 D.L.R. (4th) 163).
Deol was decided by the Federal Court of Appeal two years after Jiwanpuri, MacGuigan J.A. writing for the Court. Deol was also an application for judicial review of the decision of the Board on appeal from a visa officer's decision under subparagraph 19(1)(a)(ii) of the Act. The role of the Board on appeal was clarified [at page 5]:
There is by now considerable authority as to the board's role vis-à-vis the opinions of the medical officers. It may not question their medical diagnosis (Jiwanpuri . . .), but when requested, it should enquire into the reasonableness of their conclusion as to the probable demands on government services.
These statements as to the standard of review are clearly made within the context of the Board's responsibilities and powers under the Act, and having regard to its expertise. It does not necessarily follow that judicial review of a visa officer's decision is subject to the same standard of review since visa officers do not have the appellate power vested in the Board with respect to the reasonableness of the opinion of the medical officers as to probable demands on public services.
Despite the difference between judicial review of the decision of the Board exercising appeal powers, and judicial review of a visa officer who has no statutory authority to overturn the opinion of the medical officers, this Court has on a number of occasions applied the standard of reasonableness to visa officers' refusals based on medical inadmissibility, and the same standard when reviewing the underlying medical opinion.
Dubé J., in Gao, set out the standard of review as follows [at pages 243-244]:
Most of the case law relating to medical inadmissibility decisions by visa or Immigration Officers has issued from appellate bodies. The general principles arising from these cases are of course relevant to a judicial review application seeking to quash an Immigration Officer's decision.
The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact relating to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case [Jiwanpuri; Deol]. The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed [Jiwanpuri]. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in s. 22 of the Regulations. [Footnotes omitted or abbreviated].
In Ismaili, Cullen J. went further than in Gao, by concluding at page 147:
The visa officer"wholly apart from the decision of the medical officers"is obliged to consider whether the applicant's medical condition would place excessive demands on health or social services. The visa officer, without second-guessing the medical, diagnostic opinion, must consider all of the available evidence.
Despite the attractions of this approach, it is problematic given that Parliament clearly placed the decision-making authority for medical inadmissibility in the hands of medical officers. Paragraph 19(1)(a) of the Act states:
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,
(i) . . .
(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;
Once the medical officers have formed a legally sound opinion under 19(1)(a)(ii), the subject person is medically inadmissible. The visa officer has no statutory authority to alter this opinion, although he or she may allow an exception based on humanitarian and compassionate grounds. This latter power is entirely distinct; it in no way reflects on the visa officer's authority with respect to medical inadmissibility. These are not cases, where as in Jiwanpuri or Deol, a body with appellate power intervenes between the visa officer and the court.
In Stefanska, the Honourable Mr. Justice Pinard [at pages 92-93] was not prepared to require that the visa officer assess the reasonableness of medical opinions under subparagraph 19(1)(a)(ii):
In jurisdictional terms, the question is whether the decision was made by a duly constituted authority acting without abuse of power, that is in good faith, with objectivity, for reasons and in a way which may have been defined by the Act. In the case at bar, I consider that these conditions have been met. The immigration officer was undoubtedly the duly constituted authority to make the decision pursuant to s. 6 of the Refugee Claims Backlog Regulations. As that officer had before her a medical notification meeting the requirements of s. 19(1)(a)(ii) of the Act, after Alicja Tunikowska Stefanska, who claimed landing in Canada, had been duly referred to the examining physician for a medical examination for immigration purposes, she no longer had any discretion and had no alternative but to find the applicants, husband and wife, inadmissible.
As to whether the diagnosis stated in the medical notification in question is accurate and fully supports the opinion of the physicians who signed it, these are questions of fact and not of law (see Uppal v. Minister of Employment and Immigration, 78 N.R. 152). If the applicants had been able to show that entries or notations in the medical notification were so inconsistent with each other that they made the document as a whole incoherent, then of course such a medical notification could not constitute the opinion of a medical officer concurred in by at least one other medical officer within the meaning of s. 19(1)(a)(ii) of the Act (see Hiramen v. Minister of Employment and Immigration (1986), 65 N.R. 67). However, that is not the case here. The medical notification is clear and its content quite coherent as regards the medical record consulted by Dr. Robert W. Beaulieu and the explanations given by him.
In jurisdictional terms, therefore, the decision was manifestly made by the proper authority who acted in good faith in accordance with the provisions of the Act.
In procedural terms, since the decision affects individual rights and interests, the administrative authority must have acted fairly (see Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police and Attorney General of Ontario, [1979] 1 S.C.R. 311 . . .). In the case at bar this duty simply required that before making a decision the authorities should ensure that Alicja Tunikowska Stefanska was seen by an examining physician and took the medical examination prescribed for immigration purposes; subsequently, a medical notification consistent with the requirements of s. 19(1)(a)(ii) of the Act compelled the immigration officer to regard the applicants as inadmissible. In view of the legislation within which the immigration officer was required to act, I cannot accept the proposition that the officer should have disclosed the relevant medical information to the applicants before making her decision. Once again it sufficed that the applicant, who was aware of her condition, was seen by the examining physician and that a medical notification in accordance with s. 19(1)(a)(ii) of the Act was duly made.
This is an early case (1988). It held that the visa officer is only responsible for ensuring that the procedural requirements of subparagraph 19(1)(a)(ii) have been met.
In 1995, Simpson J. considered the present issue in Gingiovenanu and Jaferi, supra. In Gingiovenanu [at page 78] she held that the visa officer should reject the medical opinion if it is manifestly in error; but she then went on to apply the test of whether the medical opinion was "not unreasonable":
I have concluded that s. 19(1)(a)(ii) of the Immigration Act does not give the visa officer the discretion to review the opinion formed by the medical officers . . . Once the opinion has been formed, the person at issue is an inadmissible class and cannot be granted admission by a visa officer. However, the visa officer has a duty to act fairly and pursuant to that duty would be compelled to reject the notice if it was manifestly in error. For example, if it related to the wrong party or an irrelevant disease, or if all relevant medical reports had not been considered.
. . .
The applicant does not dispute Dr. Saurer's conclusions about the extent of the son's disability. In these circumstances I am satisfied that the Medical Officers' conclusion that the son might reasonably be expected to cause excessive demands on social services is not unreasonable because it flows from the preponderance of the evidence.
Simpson, J. followed Gingiovenanu in Jaferi, but adopted language closer to that in Ismaili, supra. In Jaferi [at page 147], she stated that, "[h]owever, there is a duty to act fairly and to make sure that the medical officer's Conclusion is reasonable". It is doubtful that there is a middle ground between "unreasonable" and "reasonable", so the shift from "not unreasonable" to "reasonable" is perhaps just a simplification, although the change is marked from "manifestly in error".
MacKay J. addressed the problem in Ajanee, supra. He conducted a comprehensive analysis of the previous jurisprudence. He distinguished Ismaili as follows [at page 177]:
Both Ahir and Ismaili do support the principle that an adjudicator or a visa officer has a responsibility to consider reasonableness of the assessment by medical doctors, but in each of those cases there were circumstances which ought to have caused the immigration officer to question the reasonableness of the doctors' opinion, not on medical grounds but upon an apparent defect in the record . . . . In Ismaili the visa officer's negative decision was set aside where it was said to be based on medical grounds but the medical report indicated a likely requirement for special education services for a prospective immigrant child, but made no reference to health and social services. In that case, Cullen, J., referred the matter back to the visa officer for assessment of health and social service implications of the child's health circumstances.
Relying on Gao, inter alia, MacKay, J. concluded [at page 178]:
The visa officer has no authority to review the diagnostic assessment of medical officers. Moreover, under s. 19(1)(a)(ii) it is the medical officers, not the visa officer, who must reach the opinion that admission of the person concerned "would cause or might reasonably be expected to cause excessive demands on health or social services".
The reasonableness of the opinion of the medical officers may be an issue for the visa officer. Where on the evidence before him or her a question arises whether the opinion is reasonable the visa officer may elect to seek further medical advice. Where no serious question arises on the record before him or her, the visa officer may act on the basis of the opinion as it is presented to him or her.
. . .
As noted in Gao, a reviewing court is competent to review the evidence to determine whether the medical officers' opinion is reasonable in the circumstances of the case. A medical opinion will be considered unreasonable because of incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence or failure to consider the factors set out in s. 22 of the Regulations.
MacKay, J. clearly stopped short of requiring the visa officer to review reasonableness, while agreeing that the visa officer may seek further medical advice where a question of reasonableness arises in the mind of the visa officer. MacKay, J. also agrees that a reviewing court may review the reasonableness of the medical officers' opinion.
In the very recent decision of Nadon J. in Ludwig, supra, this permissive interpretation of the visa officer's role was approved [at page 282]:
It is clear from the foregoing jurisprudence that the reasonableness of the medical opinion may be an issue for the visa officer where on the evidence the opinion is or may be unreasonable.
Nadon, J. went on to conclude that there was no reason for the visa officer to question the reasonableness of the opinion on the record before him, and therefore, the visa officer's decision was reasonable. The issue thus addressed to the reviewing court was whether there was reason for the visa officer to question the reasonableness of the medical opinion based on the record before him.
Counsel for the applicant submitted that Ismaili should be followed in the case at bar. Yet, I cannot take Ismaili to mean that in the circumstances at bar, a visa officer has an independent authority and duty to review the medical opinion at the standard of reasonableness. Such an authority is simply not available to visa officers under the Act.
In my view, when a valid medical opinion is formed under subparagraph 19(1)(a)(ii), that opinion is binding on the visa officer. However, 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, an error of jurisdiction is involved. It cannot be said to be a valid opinion under subparagraph 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and his or her decision may be reviewed in this Court on that basis. It should also be noted that there is at present no impediment to an affected individual seeking judicial review of the medical opinion itself.
2. Excessive Demand
As already noted, it is clear that the finding of the medical officers herein was based primarily on one ground, the fact that a mentally retarded child would require higher educational costs than other children. I note, inter alia, the following extract from the cross-examination of Dr. Hutchings, at pages 14-15 of the record:
Q. And hypothetically again, if North York had said, "Well, we've got 40 seats unfilled year to year for these children, we can take him", that wouldn't have mattered either.
A. No.
Q. And so, I take it that the real issue is expense?
A. Yes.
Q. Okay. And for the most part, and not for every case, but for most cases, if a child is mildly or moderately retarded and has to have special education, then they likely will probably be refused because of the expense involved, in educating him?
A. Yes, in the case of mental retardation.
Further, the following extract from the cross-examination of Dr. Axler, at pages 16-17 of the record:
Q. Well, you use the word "social and educational support services". That's a very general statement, Dr. Axler. Don't you think you might have been . . . it might have been better to say she'll require special schools and a special school setting and she'll require physiotherapy and occupational therapy, whatever it is?
A. Well, she will require . . . she will require special schooling, not necessarily in a special school setting, perhaps in a normal school setting, but she will require special schooling, special education. She will not require physiotherapy, she will not require occupational therapy, in the next five years, although she may well in the future.
Q. Well, what other services is she going to need other than school services?
A. School services are, as I say, that is the gist of the excessive demand.
I have considerable difficulty reconciling this evidence with the medical narrative, which was remitted from the medical officers to the visa officer in order to explain the basis for the medical exclusion. I repeat the medical narrative here:
MODERATE MENTAL RETARDATION I.C.D. #317
THIS 7 YEARS OLD CHILD HAS A MODERATE DEGREE OF MENTAL RETARDATION WITH AN I.Q. OF 35. SHE REQUIRES EXTENSIVE SOCIAL AND EDUCATIONAL SUPPORT SERVICES AS WELL AS CONSTANT SUPERVISION. THESE SERVICES ARE VERY EXPENSIVE AND OFTEN IN SHORT SUPPLY.
SHE WILL LIKELY PLACE EXCESSIVE DEMAND ON SOCIAL SERVICES AND SHE IS THEREFORE INADMISSIBLE UNDER SECTION 19(a)(ii) OF THE IMMIGRATION ACT.
ALSO HAS: SEIZURE DISORDER.
This medical narrative suggests the need for extensive social and educational support services, as well as constant supervision, and finally the narrative states that these services are very expensive and often in short supply. In actual fact, the cross-examination reveals that the doctors considered primarily only the cost of extra educational services. They did not consider the supply of such services, nor did they think it relevant. They did not obtain relevant information respecting the need for constant supervision, nor did they think it relevant. The social services required, other than educational services, were either trivial or entirely secondary in the doctors' opinion. It is clear from the evidence that the medical narrative cannot be substantiated.
The applicant had no meaningful opportunity to bring to the attention of the medical officers the facts relating to excessive demand, because the letter of August 1, 1995, the so-called "fairness letter", left the applicant totally in the dark as to what issues he should respond to in addressing the preliminary medical opinion. The letter states that "it is at your own discretion to decide on the type of additional information (medical or other) you wish to submit for our final consideration". At no point in the conduct of this file was the applicant ever made aware of the criteria actually being employed by the medical officers in forming their opinion. If not a breach of natural justice, at the very least this practice did not facilitate the medical officers obtaining the relevant information for a fair consideration of the case. In my view, such a practice could be regarded as being unfair.
Subparagraph 19(1)(a)(ii) of the Act is open-ended. It states that the medical officers must form an opinion with respect to whether admission "would cause or might reasonably be expected to cause excessive demands on health or social services". Excessive demand was defined in the Regulations which have since been declared ultra vires by the Ismaili decision.
While this decision is one of a discretionary nature, I am of the view that the medical officers have erred in applying the statutory test. It is an error to state through the medical narrative that the reasons for exclusion were extensive social and educational support services, the need for constant supervision, and the expense and supply of these services, while in actual fact the medical officers conceded that information highly relevant to determination of these factors was not before them. It is also apparent that they did not take effective measures to obtain this information.
If I had found that the visa officer was under a duty to ensure that the medical opinion is reasonable, then I would have found that the visa officer failed to discharge that duty. Further, if the proper standard is that the visa officer must consider the reasonableness of the medical opinion where the visa officer has reason to believe it is in error, then I would have found that the visa officer erred because she was in a position to know that there was no information before the medical officers respecting constant supervision since the family's capacity to provide supervision at home was never raised as an issue with the family. On this issue the comments of Rothstein J. in Litt supra [at page 307] are apposite:
Without deciding whether the possibility of failure of family support was properly a subject matter for the medical officer, as opposed to the visa officer, there does not appear to have been sufficient evidence to lead the medical officer to speculate that it might fail. I do not question that the decision-making process should properly include the issue of family support and that it would be open to the appropriate decision-maker, for valid reasons, to discount or reject commitments of support by family members.
In this case, the finding that constant supervision was necessary gives rise to a question of the extent of available family support. There was no evidence before the medical officers to support a finding of constant supervision, because there was no evidence of a failure of family support. While it is possible that changes to the statutory regime may be forthcoming, the present requirement is for an individual assessment rather than a medical inadmissibility decision based purely on the medical condition in question.
Whatever standard is applied, I am of the view that the medical opinion set out in the medical narrative cannot be justified because of the failure of the medical officers to obtain or seek to obtain the information necessary for a fair evaluation of the grounds which formed the basis for their inadmissibility decision.
3. Consideration of the Medical and Visa Office Files
Based on my finding that the visa officer is not under a duty to ensure that the medical opinion was reasonable, and based on the fact that there is no dispute in the jurisprudence that the visa officer cannot review the medical aspect of the medical officers' opinion, I am not persuaded that it is necessary for the visa officer to review the medical file.
As to whether the medical officers should consider the contents of the visa file, it is necessary for the medical officers to consider any evidence which is relevant to the issue of excessive demand. In this case, the doctors indicated criteria in the medical narrative, but did not seek the necessary information to fairly consider them. Neither was the applicant provided with a fair opportunity to provide such information. This failure on the part of the medical officers is entirely separate from whether they should have access to the full visa office file, which is a matter to be decided by the respondent.
CONCLUSION
For the foregoing reasons, I have concluded that the medical opinion which supports the decision a quo is defective because the medical officers herein erred in their application of the test set out in subparagraph 19(1)(a)(ii) of the Act. Accordingly, the application for judicial review is allowed. The decision of visa officer, S. Tai, dated November 24, 1995, is set aside and the matter is returned to a different visa officer for rehearing and redetermination on a basis not inconsistent with these reasons for order.
CERTIFICATION
Counsel for the applicant suggested three questions for certification pursuant to the provisions of section 83 [as am. by S.C. 1992, c. 49, s. 73] of the Immigration Act:
(1) Does a visa officer err in law by failing to ascertain the detail subtending the medical notification submitted to him by a medical officer in sufficient explanation to allow an applicant to know and rebut the case against him in such notification?
(2) Does a medical notification that opines excessive demand based upon a cost approach only create an error in law?
(3) Does the inquiry to be made under subparagraph 19(1)(a)(ii) by a medical officer exclude non-medical facts?
In so far, as question No. 1 is concerned, I agree with respondent's counsel that the question posed does not arise on the facts at bar.
Coming now to question No. 2, I also agree that it is not certifiable because it has been addressed in the existing jurisprudence of the Court.
In so far as question No. 3 is concerned, I agree that it does not arise on the facts of this case and, therefore, should not be certified.
Accordingly, and for the above reasons, no questions are certified.
COSTS
Since the applicant has not established any special reasons justifying an award of costs, pursuant to the provision of Rule 1618 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)], no costs are awarded.