Chun v. Canada ( Minister of Citizenship and Immigration )
IMM-5208-97
Teitelbaum J.
29/10/98
15 pp.
Judicial review of visa officer's refusal of application for permanent residence because daughter found medically inadmissible pursuant to Immigration Act, s. 19(1)(a)(ii)-21-year-old daughter suffering from epilepsy since age two, but seizure free for many years, having mild retardation and neurofibromatosis requiring no particular treatment-Achieving social age of 9 years, six months, having limited self-care, community-living, socialization skills, will require vocational training to help her develop work skills, social programs to develop interpersonal relationships, English training-Applicant submitting although refusal letter describing daughter as "dependent" pursuant to definition of "dependent daughter" as defined in Immigration Regulations, s. 2(1), medical condition assessed in light of her becoming independent as in s. 2(1)(a), (b), not as dependant who would remain dependent as envisaged by s. 2(1)(c)-Doel v. Canada (Minister of Employment and Immigration) (1992), 18 Imm. L.R. (2d) 1 (F.C.A.) stating proper medical assessment must appreciate, indicate degree of retardation, probable causes of that degree of retardation-Medical notification herein confirming daughter suffering from mild retardation-Sabater v. Canada (Minister of Citizenship and Immigration) (1995), 31 Imm. L.R. (2d) 59 (F.C.T.D.) holding in cases of mild retardation reasonable to impose higher onus on medical officers to demonstrate excessive demands on social services-But medical officer should not be held to standard such that required to identify specific health, social services from which child would reasonably benefit once in Canada-Medical officers not erring in providing these reasons-Daughter's application not considered as dependent child who will reside with, be supported by parents-Medical notification referring merely to economic factors of assessment such as inability to support herself or to achieve independence, need for special vocational training and sheltered workshop environment-Assessment not considering all circumstances of case, including degree, effectiveness of family support, severity of condition, prospects for economic, personal physical selfsufficiency, that will be cared for in family home into future-Finding of mental retardation not necessarily resulting in excessive demands on health, social services-Choi v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 85 (F.C.T.D.) reviewing judgments to determine what constitutes "excessive demands" including Nyvlt v. Canada (Secretary of State) (1994), 26 Imm. L.R. (2d) 95 (F.C.T.D.) wherein Reed J. stating lack of precise definition of what constitutes excessive demands for medical services troubling-Also referring to Jim v. Canada (Solicitor General) (1993), 69 F.T.R. 252 (F.C.T.D.) wherein held "excessive demands" should not be interpreted as "unreasonable", but as "more than what is normal or necessary"-Medical assessment herein improperly based on economic standards applicable to persons who would not necessarily be living with parents for at least foreseeable future-Matter returned for new assessment-Medical officers applied test imposing too high standard in assessment of medical condition of dependant suffering from mild retardation-Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii)-Immigration Regulations, 1978, SOR/78-172, s. 2(1) "dependent daughter" (as am. by SOR/92-101, s. 1).