Poste v. Canada ( Minister of Citizenship and Immigration )
IMM-4601-96
Cullen J.
22/12/97
25 pp.
Judicial review of visa officer's refusal to grant application for permanent resident status on ground family expected to cause excessive demands on social services in Canada as son within class of inadmissible persons described in Immigration Act, s. 19(1)(a)(ii)-20-year-old (now) son mentally disabled-Eligible for disability pension from Australian government even if residing outside Australia-Applicant submitting medical examinations-Upon request, submitting additional information, including two reports from Dr. Rickard as to son's general ability assessment-Also obtaining speech therapist's report, neurological physiotherapist's report-Latter indicating reasonably welldeveloped language abilities ranging from 8 to 12-year-old level in contrast with 5 to 7 1/2-year-old range in Dr. Rickard's report-Also indicating number of competencies related to daily living, would likely be able to live in placement in community with supervision-Based on Dr. Rickard's report, without reference to reports of speech therapist, neurological physiotherapist, medical officer giving medical opinion son mildly mentally retarded, would require numerous expensive, scarce social services-Medical Notification concluding son not fulfilling medical requirements for admission to Canada-(1) Whether medical officer's opinion reasonable in circumstances; (2) whether visa officer obliged to assess reasonableness of Medical Notification, and if so, was assessment open to him on basis of evidence before him-S. 19(1)(a) prohibiting admission of any person suffering from disability as result of which, in opinion of medical officer, concurred in by at least one other medical officer, admission might reasonably be expected to cause excessive demands on health, social service-Application allowed-Adjudicator or visa officer having responsibility to consider reasonableness of assessment by medical doctors on defect in record, not on medical grounds-Issue whether visa officer having reason to question reasonableness of medical opinion based on record-No evidence medical officers made any inquiries as to what kind of social services would relate specifically to son's circumstances-Difficult to see how medical officers could come to conclusion of "excessive demands on social services", given evidence before them regarding likelihood of recourse to social services, particular social services likely required should such recourse be necessary, expense of such services given off-set from son's Australian disability pension, quality of family support to son-No evidence to show medical officers addressed question of excessive demands as related specifically to son-On contrary, evidence seeming to show medical officers only considered demands placed on social services by mentally disabled in general-Medical officers having duty to assess circumstances of each individual coming before them in their uniqueness-Statutory duty to give opinion as to demands that would likely be placed on social services-Insufficient to give opinion on such demands in general-Opinion must be founded firmly on individual's personal circumstances and all circumstances of case, including degree of family support and commitment to individual, particular resources of community-Otherwise cogent evidence ignored, and opinions regarding demands on social services becoming unfounded, cannot be upheld by Court-While not Court's role to substitute its opinion for that of expert medical opinion, it is Court's role to ensure statutory requirements met-Statutory requirement for individual assessment not met herein-Medical officers' opinion not valid under s. 19(1)(a)(ii)-Error of law warranting judicial intervention-Sufficient evidence before visa officer for him to doubt reasonableness of medical officers' opinion regarding quality, quantity of social services required vis-à-vis issue of excessive demands-As medical officers ignored cogent evidence, coming to unfounded conclusion in opinion, visa officer erred in law in applying such invalid opinion-Applicant requested to provide three expert reports to Immigration regarding son-Decision made as to medical inadmissibility of son on basis of only one of reports submitted i.e. least favourable report-Indicating Immigration officials may have refused to consider two other reports requested of applicant i.e. more favourable reports-When government body such as Immigration requesting information of individual, duty-bound to consider information when received, especially where information requested in form of expert opinion, which is time consuming, costly to acquire-If decision rendered contrary to information requested, decision maker must at least make reference to contrary information, account for rejection-Nothing on face of record indicating consideration of favourable material seriously made-No appearance of justice-Decision makers failing applicant in basic duties of procedural fairness, natural justice-Conclusion individual in highest category of medical inadmissibility-Very serious conclusion requiring support in evidence-Visa officer must not simply accept medical officer's determination of medical inadmissibility as basis for rejecting application for permanent status-To do so effectively giving medical officers "carte blanche" authority to decide who can immigrate to Canada-Final decision must rest with visa officer, who has duty to assess all circumstances of case-Immigration Act, R.S.C., c. I-2, s. 19(1)(a).