Digests

Jang v. Canada (Minister of Citizenship and Immigration)

A-270-00

2001 FCA 312, Malone J.A.

19/10/01

8 pp.

Appeal from dismissal of judicial review application challenging visa officer's refusal of immigrant visa, on ground of medical inadmissibility of appellant's wife--Appellant, citizen of South Korea, applied for permanent residence for himself, wife, son--Before completing visa application, contacted Montréal lawyer about wife's medical status as she had undergone kidney transplant in 1989--Doctor at Health Services in Ottawa advising lawyer that, according to 1992 Handbook, used as guide in such cases, transplant patients with abnormal kidney function should be declared inadmissible--However those patients whose serum creatine less than specified level, one year after being transplanted might be considered to have normal renal function and might be assessed as admissible under category M-3--Appellant's wife examined by two doctors in Seoul who concluded that at time application form submitted, she required continuing, costly anti-rejection drug treatment--Canadian medical officers concluded appellant's wife's condition, ongoing therapy likely to place excessive demand on Canadian health care services --Letter sent to appellant explaining wife's medical condition could preclude admission to Canada, inviting response with new medical information--Also provided with copy of medical notification form, explanation of medical assessment --Appellant re-sent first medical report along with photocopy of page from 1992 Handbook, noting wife's condition within attached parameters of admissibility--Same two Canadian medical officers decided original conclusion should not be disturbed based on subsequent unofficial updates to 1992 Handbook which noted high cost of drug therapy for transplant patients, specifically cyclosporine, part of wife's ongoing drug therapy--Permanent residence denied--Appeal dismis-sed--Duty of fairness attaches to process by which visa officer considers, decides application for immigrant visa, but not requiring visa officer to divulge complete details of medical officers' method of evaluation or various facets of specific decision-making processes adopted by ministerial officials-- Requires visa officer to give appellant adequate opportunity to respond to any negative medical assessment--Provision to appellant of copy of wife's medical notification form identifying future medical costs, diagnosis, prognosis, health and social services required to deal with condition, and negative assessment together with invitation to respond sufficient to meet requirements of duty of fairness--No merit to argument Minister's failure to update 1992 Handbook led to legitimate expectation guidelines therein would be followed--Condition precedent to application of doctrine that expectation that arises must be reasonable or legitimate--Basis for reliance on 1992 Handbook oral inquiry by Montreal lawyer--Not enough to give rise to legitimate expectation, especially where 1992 Handbook itself not interpreted by one of medical officers, but merely by counsel--Reliance on 1992 Handbook eroded by medical assessment classifying appellant's wife in M-5 category--Certified questions answered: (1) Minister not breaching duty of fairness by relying to applicant's detriment on material modifying content of Handbook in assessment of dependant's medical condition without publishing or disclo-sing material to applicant, where no specific request for any such material made; (2) publication, continued distribution of Handbook by Minister not giving rise to legitimate or reasonable expectation applicant can rely on Handbook as guideline without making specific request for material that might modify it in manner relevant to application for landing.