Sirbu v. Canada (Minister of Citizenship and Immigration), 2006 FC 449

Date: 20060407

Docket: IMM-792-05

Citation: 2006 FC 449

OTTAWA, Ontario, April 7, 2006

PRESENT:      The Honourable Mr. Justice Teitelbaum

BETWEEN:

CRISTINA SIRBU

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR JUDGMENT AND JUDGMENT

[1]                This is an application for leave and judicial review, under s. 72(1) of the Immigration and Refugee Protection Act S.C. 2001, c. 27, of a decision of Immigration Appeal Division ("IAD") of the Immigration and Refugee Board, dated January 14, 2005. In the decision, the IAD denied the applicant's sponsorship application for her father, Gheorghe Constantin.

[2]                The applicant applied to sponsor her parents' application for permanent residence, as members of the family class.

[3]                The applicant's parents underwent medical examinations. The applicant's father's medical examination revealed that he had chronic ischemic heart disease. A Visa Officer determined that the applicant's father would require serious medical attention, if he were granted permanent resident status, under s. 38(1)(c) of the IRPA. Section 38(1)(c) reads as follows:

[4]                The Officer concluded that the applicant's father would require extensive treatment if he was admitted to Canada, including surgery, to treat his heart disease. The Officer went on to iterate that the applicant's father would exceed per capita health care costs, and that his treatment might displace a person in Canada who was awaiting similar services.

[5]                The Officer rendered a negative decision, as regards the applicant's father, in the sponsorship application. The applicant appealed the Officer's decision to the IAD.

[6]                The IAD upheld the Officer's decision, finding that the medical inadmissibility determination was valid, and that there were no humanitarian and compassionate factors, under s. 25 of the IRPA, warranting an exception in the applicant's father's case.

[7]                The IAD reviewed the applicant's father's diagnosis, and affirmed that the Officer's decision under s. 38(1)(c) of the IRPA was based on a valid medical diagnosis. The IAD went on to consider a medical report submitted by a doctor consulted by the applicant's father, Dr. Tudor. The report suggested treatment for the applicant's father, and made a positive prognosis with respect to his heart condition. The IAD found as follows, with respect to the report:

Though the medical report of Dr. Tudor states that the male applicant has had a very good evolution in the past two years [since the diagnosis] and the prognosis is considered to be good under the treatment recommended, the diagnosis is not at odds with that of Dr. Jeremy Brown. The report submitted by the appellant does not address the potential need for surgery. As well, the specialist states that the male applicant needs periodical check ups, confirming the opinion of Dr. Jeremy Brown that the male applicant will require the service of cardiologist specialists in Canada. As noted by Dr. Jeremy Brown, the male applicant's health condition might reasonably be expected to require services, the cost of which would likely exceed the average Canadian per capita costs over 5 (or 10) years as well add to existing waiting lists.

[8]                The IAD concluded that the report submitted by Dr. Tudor did not conflict with the evidence of Dr. Brown, and therefore the Officer's refusal was valid in law.

[9]                The IAD went on to consider whether there are humanitarian and compassionate reasons to warrant an exception for the applicant's father, allowing him to receive permanent resident status under s. 25 of the IRPA.

[10]            The IAD considered whether there were circumstances that existed, including the effect on any child directly affected by the decision, and the applicant's father's ability to receive adequate medical treatment in Romania. The IAD concluded that, while the applicant and her children clearly have a close relationship with her father (her children's grandfather), there was not sufficient evidence that the applicant and her children would be unable to visit Romania in the near future. The IAD also concluded that the applicant's father could receive, and is receiving, adequate medical care in Romania. The IAD concluded that there is no undue hardship on the applicant or her parents.

[11]            The applicant now applies to the Federal Court for judicial review of IAD's determination. The applicant raises three issues:

(i)                   The applicant submits that she was denied procedural fairness in the hearing, as Dr. Tudor did not testify;

(ii)                 The applicant submits that the finding of medical inadmissibility is tainted by error; and

(iii)                The applicant submits that the IAD misinterpreted the evidence of hardship advanced by the applicant.

[12]            The applicant submits that the IAD breached procedural fairness by denying her the opportunity to call Dr. Tudor as her expert witness. However, the evidence does not bear out the applicant's allegations. The applicant was asked during the hearing if she wished to call Dr. Tudor as a witness, and she replied that she did not.

[13]            The Applicant submits that she was confused and intimidated by the process, and fully intended to call Dr. Tudor as a witness at the hearing. However, as the respondent iterates, the applicant was asked, on two occasions, whether she intended to call the doctor. In the first instance, she replied that the panel could "forget about that", and, in the second instance, the applicant simply replied in the negative. I am of the opinion that the applicant's negative reply, in two instances, is sufficient to determine that she did not intend to call Dr. Tudor at the hearing.

[14]            Notwithstanding her negative responses, I will add that Dr. Tudor's evidence, in the form of the report, was clearly considered by the IAD. The IAD's conclusion, that the report did not conflict with the medical diagnosis of Dr. Brown, was open to the IAD on the facts of the case. Testimony from Dr. Tudor would have only served to reinforce the aspects of the report that were considered by the IAD. As the report was considered, and notwithstanding the applicant's abandonment of her intention to call Dr. Tudor, I am of the opinion that the medical opinion of Dr. Tudor, in the form of the report, was considered by the IAD, and reasonably found not to conflict with Dr. Brown's diagnosis of the applicant's father. Accordingly, the applicant's allegation that she was denied procedural fairness is without merit, and must be dismissed.

[15]            The second issue raised by the applicant is the medical inadmissibility finding. The applicant submits that a medical officer's report can be discarded if the report includes a patently unreasonable error of fact (see Masood v. Canada(Minister of Citizenship and Immigration) 2003 FC 1411). The applicant refers the court to the diagnosis of the applicant's father, which states in part as follows:

The sixty four year old applicant, whose intended Canadian destination is Ontario, has had ischaemic heart disease since nineteen sixty and was last admitted to hospital in February of 2002 with accelerated angina which was stabilized with medical treatment.

[16]            The applicant submits that her father has not had ischaemic heart disease since 1960 - the first time he was diagnosed was when he was in Canada in 1998. The applicant submits that the claim that her father has had heart disease since 1960 constitutes a patently unreasonable error of fact, and, as a result, the medical report could not be relied upon by the IAD.

[17]            At the IAD hearing, the applicant stated that she was not challenging the legal validity of the Officer's medical inadmissibility determination. Accordingly, the argument raised before this court was not properly raised before the IAD. If the applicant had intended to challenge the Officer's report, she should have done so before the IAD. As a consequence of her failure to raise the argument before the IAD, the argument can not be raised in the present judicial review. Accordingly, the applicant's argument with respect to the medical inadmissibility determination is not an issue before this court, and will be dismissed.

[18]            I will add, as an obiter comment, that I am of the opinion that the date on the report does not amount to a patently unreasonable error of fact, as set out in Masood, above. The material aspect of the report is that the applicant's father was diagnosed with ischaemic heart disease in 1998, and therefore is inadmissible to Canada under s. 38(1)(c) of the IRPA. In addition, there is evidence suggesting that the report referred to by the applicant was a diagnosis for a person suffering from tuberculosis. Her father is not suffering from TB, and the evidence relied upon by the IAD was clearly evidence regarding the diagnosis of her father, and not evidence regarding the diagnosis of a person with TB. Even if the applicant had raised the issue at the hearing, her argument with respect to the error in the report does not reveal a patently unreasonable error, and would not warrant allowing her application for judicial review.

[19]            The applicant did not raise the issue of the medical report before the IAD, and, accordingly, the application for judicial review should be dismissed on the second issue.

[20]            The third and final issue raised by the applicant is that the IAD misinterpreted the evidence of the applicant with respect to the humanitarian and compassionate considerations. The applicant submits that the IAD misinterpreted the evidence, when it found that "the panel hopes that the Applicants will be allowed to visit their grandchildren in the future".

[21]            The applicant alleges that the inadmissibility finding will extend to ineligibility for visitor's visas, and that the finding of the IAD conflicts with the applicant's father's ability to visit Canadain the future. The applicant also submits that, at the hearing, the respondent's counsel acknowledged that the applicant's parents may have difficulty visiting Canada in the future.

[22]            I am of the opinion that the applicant's argument, with respect to the third issue, has no merit. The IAD simply expressed the "hope" that the applicant's parents could visit Canada in the future. The IAD's comment does not show a misinterpretation of the facts, as the comment is not a guarantee that the applicant's parents can visit Canada in the future. The IAD merely expressed hope that the applicant's parent will get the opportunity to visit Canada in the future, and visit their daughter, and grandchildren. The evidence of the respondent's counsel, along with a letter sent to the applicant's father by a visa officer in Romania, concedes that the applicant's father may have difficulty obtaining a visitor visa, as a result of his refusal for permanent residence. However, the evidence does not eliminate the possibility. Accordingly, it was open to the IAD to express hope that the applicant's parents could visit Canada in the future. The application for judicial review must also be dismissed on the third issue.

[23]            The three issues raised by the applicant do not merit allowing the instant application, and, accordingly, the application must be dismissed.

[24]            I also add that the respondent should do all in its power to grant the applicant's parents a visitors' visa to visit with the applicant and the grandchildren.

JUDGMENT

            The application for judicial review is dismissed. No question was submitted for certification.

"Max M. Teitelbaum"

FEDERAL COURT

NAME OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-792-05

STYLE OF CAUSE:                           Cristina Sirbu v. M.C.I.

PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       March 24, 2006

REASONS FOR JUDGMENT:        TEITELBAUM J.

DATED:                                              April 7, 2006

APPEARANCES:

John Howorun	FOR THE APPLICANT
Martin Anderson	FOR THE RESPONDENT

SOLICITORS OF RECORD:

John Howorun Barrister & Solicitor Toronto, Ontario	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT