Li v. Canada ( Minister of Citizenship and Immigration )
IMM-466-96
Tremblay-Lamer J.
30/9/98
12 pp.
Judicial review of visa officer's denial of permanent residence on ground medically inadmissible-Immigration Act, s. 19(1)(a)(ii) prohibiting admission of persons suffering from health impairment, nature, severity or probable duration of which, in opinion of medical officer, concurred in by at least one other medical officer, might reasonably be expected to cause excessive demands on health, social services-Applicant's left kidney removed in 1982-In opinion of medical officer, concurred in by another medical officer, admission would cause or might reasonably be expected to cause excessive demands on health, social services-"Fairness letter" sent to applicant informing him of medical officers' opinion, requesting additional medical information-Applicant submitting additional medical information-January 2, 1996 memo confirming additional medical information considered, but not signed by medical officers-December 20, 1995 refusal letter acknowledging submission of additional information, but stating medical determination unchanged-Application allowed-Two significant procedural defects warranting setting aside visa officer's decision: (1) rejection letter sent 13 days before record showing medical officers considered additional medical information; (2) fairness letter not setting out criteria on which medical officers' opinion based, specifying nature of services upon which applicant could reasonably be expected to place excessive demands-When immigration officials request additional medical material, must seriously consider information before making decision: Poste v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 145 (T.D.)-Visa officer having duty to ensure medical officers seriously considered additional information before issuing final rejection letter-That rejection letter dated 13 days prior to memo confirming medical officers' consideration of additional medical information casting serious doubt on whether or not this was done-Fairness requiring "fairness letter" include criteria actually employed by medical officers in forming opinion, as well as specific nature of services upon which applicant can reasonably be expected to place excessive demands, in order to ensure applicant meaningful opportunity to disabuse them of their opinion-Visa officer failed to ensure, based on face of record, requested additional medical material seriously considered by medical officers, before issuing rejection letter-Such failure not only breach of procedural fairness, but also rendering medical officers' opinion unreasonable since rendered before having considered all relevant medical information-S. 8 placing onus on applicant to prove admission not contrary to Act, Regulations-Applicant's condition must satisfy medical officers, with respect to excessive demands on health, social services at time application processed-Application must be re-processed on basis of current medical information-Immigration Act, R.S.C., 1985, c. I-2, ss. 8, 19(1)(a)(ii).