Cabaldon v. Canada ( Minister of Citizenship and Immigration )
IMM-3675-96
Wetston J.
15/1/98
7 pp.
Application for judicial review of visa officer's decision denying applicant and family admission to Canada as permanent resident on basis applicant's dependent child suffered from medical condition (severe hearing impairment with delay in speech development) which, in opinion of two medical officers, might cause excessive demands on social services in Canada-Issue whether medical officers' opinions concerning child based upon insufficient evidence on record, or product of failure to observe procedural fairness-Under Act, s. 19(1)(a) and Regulations, s. 22, medical officers required to form medical opinion as to whether child's medical condition might reasonably be expected to cause excessive demands on health or social services in Canada-Role of visa officer only to determine whether any obvious error made in formulation of medical opinions, based on record before medical officers-In absence of finding of obvious error, visa officer will be bound by medical opinions provided-Medical officers' opinions on diagnosis and prognosis not open to review by Court, but opinions on "excessive demands" open to review-Grounds for review: incoherence or inconsistency, absence of supporting evidence, or failure to consider factors stipulated in Regulations, s. 22: Gao v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.)-Visa officer did not err in exclusively relying on opinions provided by medical officers-Moreover, neither medical officers, nor visa officer, erred in failing to consider evidence family members resident in Canada had promised support to applicant's family-Right to social services cannot be waived through financial support promised by relatives-No evidence medical officers misconstrued child dependent applicant, rather than independent one-Applicant's potential for economic and personal physical self-sufficiency may sometimes be relevant factor in determining whether applicant medically inadmissible-Respondent conceded child may only require few years of specialized schooling to catch up to children of own age and to adapt to hearing impairment-Record before medical officers contained no estimation of actual amount of specialized education required by child, nor any documentation concerning availability of, or current access to, such specialized education in Canada-However, under Regulations, s. 22, medical officers required to consider whether "new case" would prevent or delay provision of those services to Canadian citizens or permanent residents-In forming opinion in absence of such supporting evidence, medical officers erred in application of test set out in Act, s. 19(1)(a)(ii)-Consequently, visa officer's decision to exclude applicants due to child's medical condition set aside-Application allowed-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a) (as am. by S.C. 1992, c. 49, s. 11)-Immigration Regulations, 1978, SOR/78-172, s. 22.