Manto v. Canada (Minister of Citizenship and Immigration), 2001 FCT 572

Date: 20010601

Docket: IMM-5841-99

Neutral Citation: 2001 FCT 572

Ottawa, Ontario, this 1st day of June, 2001

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

SAMIRA SHAMIN MANTO

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                This is an application for judicial review brought pursuant to subsection 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 of the decision of Lisa Holliday, Designated Immigration Officer, dated October 12, 1999. In her decision, the visa officer refused the applicant's permanent residence application on the ground that she was medically inadmissible.

[2]                The applicant seeks an order of certiorari quashing the above decision; an order of mandamus directing the respondent to process the application for permanent residence, or in the alternative, referring the matter to a different visa officer for redetermination; and such further and other relief as counsel may advise and this Honourable Court deem just.

Background Facts

[3]                The applicant, Samira Shamim Manto was born on April 18, 1971 and is a citizen of Pakistan. In 1986, the applicant had a live related (father's) kidney transplant in London, England. Her transplant was uneventful and she states she has been trouble free since. The applicant presently takes the following immunosuppressing drugs: cyclosporine (Neoral) at 50 mg BID (twice a day); azathropine at 150 mg a day; and prednisolene at 5 mg a day.

[4]                On August 3, 1998 the applicant applied for permanent residence status in Canada under the independent category. She indicated Financial and Investment Analyst as her intended occupation. The applicant had been attending college in the United States at the time of her application. She received 68 units of assessment and the interview requirement was waived.

[5]                On December 3, 1998, at the request of immigration officials, the applicant was examined and the subject of a medical report by Dr. Shahrukh J. Hansotia, designated medical practitioner. This report was forwarded to medical officer Dr. J. Saint-Germain who completed a medical notification, the narrative of which reads as follows:

STATUS POST KIDNEY TRANSPLANT FOR RENAL FAILURE

This 27 year old applicant had end stage renal failure secondary to glomerulonephritis. She obtained a kidney transplant in 1986. Since then, she is being monitored closely as she is on cyclosporine, a costly anti-rejection medication which the applicant should take for an indefinite period of time. If admitted to Canada, she would qualify for the free supply of immunosuppressors. This would place excessive demand on Canadian health services. Inadmissible under Section 19(1)(a)(ii) of the Immigration Act.

Also has: Blindness right eye

The medical notification of Dr. J. Saint-Germain was concurred by Dr. W.G. Waddell.

[6]                The applicant was informed by letter dated April 12, 1999 that she would probably be medically inadmissible to Canada. However, before a final decision on her application would be rendered, she was provided with sixty days to submit any further information (medical or otherwise).

[7]                In response, the applicant sent the medical opinions of Dr. Aasim Ahmad (a nephrologist and her doctor in the United States at the time) and Dr. John Castro (who performed the applicant's 1986 kidney transplant). These letters reiterated that the applicant was healthy and has been trouble free since her kidney transplant. The letter of Dr. Ahmad also stated in part that the "demand on health or social services in Canada as a result of her anti-rejection medication may not be as excessive as being concluded at this stage."

The applicant also sent a letter in response addressing the medical notification. The applicant writes as follows in her letter:

1.                   The medical notification states to the effect that I am "suffering from Status post kidney transplant for renal failure." This noting gives the impression that I am some sort of an invalid. [. . .] The details of my activities contained in my application, will show that I have been as productive, if not more, as any other person who has no kidney transplant.

2.                   Kindly note that my kidney transplant has been trouble free and healthy for the last 13 years, and at present I am on minimal dosage of immunosuppressors. Consequently the load on health and social services in Canada is likely to be minimal.

3.                   I am a healthy, well qualified and a productive person. If granted permanent residence in Canada I will work, earn and pay taxes, thus be able to contribute towards health and social services expenses.

4.                   If it helps to reduce excessive demands on health and social services in Canada, I am prepared to give an undertaking that I will make my own arrangements for the immunosuppressors needed by me.

5.                   Costly anti-rejection medication may not remain so costly indefinitely in view of extensive research being carried out to find inexpensive substitutes.

[8]                On September 28, 1999 Dr. J. Saint-Germain sent the visa officer an e-mail message in which he wrote:

I have reviewed the new information as well as our medical file on this applicant and I am of the opinion that the new material does not modify the current assessment of medical inadmissibility.

Dr. Walter G. Waddell M.D. FRCPS concurs.

Jacques Saint-Germain M.D.

Senior medical officer

Immigration Health Services

[9]                On October 12, 1999, the applicant was sent a letter from the visa officer informing her that she came within the class of inadmissible persons described in subparagraph 19(1)(a)(ii) and as such, her application for permanent residence in Canada had been refused.

Issue

[10]            Did the visa officer err in concluding that the applicant would cause an excessive demand on Canadian health services?

Applicant's Submissions

[11]            Did the Visa Officer err in concluding that the applicant could be expected to cause excessive demands on health care resources in Canada? Was the opinion of the medical officer unreasonable?

The applicant submits that reasonableness simpliciter is the appropriate standard of review for a visa officer's decision, even when the question is mixed fact and law: Zheng v. Canada (Minister of Citizenship and Immigration) (2000), 5 Imm. L.R. (3d) 208 (F.C.T.D.); Lu v. Canada (Minister of Citizenship and Immigration) (1999), 176 F.T.R. 263 (F.C.T.D.) and Hao v. Canada (Minister of Citizenship and Immigration) (2000), 184 F.T.R. 246 (F.C.T.D.). The applicant also offers Gao v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.) and then submits that the absence of supporting evidence is one of the grounds of unreasonableness.

[12]            The applicant submits that she is on a minimal dosage of immunosuppressors (daily she takes cyclosporine (Neoral) 50 mg BID (twice a day), azathropine 150 mg and prednisolone 5mg). The applicant would be entitled to a free supply of anti-rejection drugs in Canada. The medical officer stated that cyclosporine and azathropine taken by the applicant would cost the Canadian health care system approximately $2,965 annually and therefore the applicant would place excessive demand on Canadian health services.

[13]            The applicant argues that the medical officer did not provide any evidence to indicate whether both of these immunosuppressants are covered by provincial health care. If one of these drugs is not covered by provincial health care, then the cost of the free supply the applicant would be entitled to would be less than that estimated. The medical officer, in the applicant's submission, was under a duty to substantiate his conclusion with clear evidence concerning provincial coverage. Because the medical officer did not specifically indicate whether both or only one of the drugs are in free supply, the applicant submits it is impossible to assess the reasonableness of the officer's conclusion.

[14]            In the alternative, if both drugs are free, the applicant submits the cost estimate provided by the officer does not constitute excessive demand on the health care system. The applicant cites Jim et al. v. Canada (Solicitor General) (1993), 69 F.T.R. 252 (F.C.T.D.) for the proposition that the term "excessive" means "more than what is normal or necessary". The applicant notes that the court in Jim et al., supra, did not decide that what is normal or necessary is to be measured against how much it would cost to provide health care to the "normal" or "healthy" person.

[15]            The applicant submits the cost of immunosuppressants that she is taking should be assessed against the cost of providing similar services for a recipient of a kidney transplant. The applicant contends that the cost of anti-rejection drugs she is taking is substantially less than a recent recipient of a kidney transplant might need to take.

[16]            The applicant also argues that the medical officer's conclusion was unreasonable since it did not reflect a meaningful consideration of the potential effect of her condition on her employability and productivity. The officer further failed to consider whether the cost of the drugs the applicant would be entitled to receive would be "excessive demand" in light of her potential contribution to the health care system by paying taxes.

Respondent's Submissions

[17]            Did the medical officer err in law in concluding that the applicant would place an excessive demand on Canadian health services?

The respondent submits the validity and accuracy of the medical officer's diagnosis and prognosis with respect to identified medical or health conditions, arises directly out of the professional medical expertise of the medical officer and is not open to review or challenge by lay persons. The respondent also submits that the medical officer's opinion as to excessive demand is essentially an administrative decision which must be shown to have been reasonable, given the individual circumstances of the prospective immigrant's medical or health condition.

[18]            The medical officer states in his affidavit the following: "Ms. Manto would be entitled to provincial coverage for her immunosuppressive drugs regardless of any suggestion that she pay for the costs of the drugs as a means of assisting her admittance to Canada." The respondent argues it is clear from this statement that the medical officer was addressing the cost of both of the applicant's drugs.

[19]            The onus is on the applicant to provide any material which would assist her application. The respondent submits the applicant did not produce evidence showing that her required drug therapy was not covered by provincial health care.

[20]            Section 22 of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") provides that potential employability or productivity is a factor which may be considered in relation to the nature, severity or probable duration of a health impairment. However, the Regulations do not refer to the applicant's ability to contribute to Canadian taxes as a relevant consideration when determining whether she would cause excessive demand on medical services.

[21]            The respondent notes the applicant has not cited jurisprudence to support her contention that the medical officer ought to have compared alternative care for persons with similar conditions in order to determine whether her demands were excessive. The respondent submits this Court has held that excessive demand is that which "would cause or might reasonably be expected to cause more than what is normal." According to the respondent, the reference to normal is not in the context of a person with a normal medical condition (i.e. normal kidney transplant patient) but rather the norm for a person without an inadmissible condition. Jim et al., supra and Choi v. Canada (Minister of Citizenship and Immigration) (1995), 98 F.T.R. 308 (F.C.T.D.) are two cases cited in support of these submissions.

Relevant Statutory Provisions

[22]            The relevant sections of the Immigration Act, R.S.C. 1985, c. I-2 state:

[23]            Section 22 of the Immigration Regulations, 1978, SOR/78-172 states:

Analysis and Decision

[24]            The respondent raised a new issue at the hearing of the matter and by agreement, I gave the applicant time to reply in writing to the new issue. The respondent submitted that section 22 of the Immigration Regulations is ultra vires in that it is not authorized by subsection 114(1) of the Act. Mr. Justice Cullen of this Court dealt with this argument in Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.). Cullen J. stated at pages 144 to 145:

. . . The amended paragraph 114(1)(m) deals only with persons who are a danger to the public; it makes no reference to excessive demand on health or social services. Relying on sections 3(i) and 19 of the Immigration Act to provide statutory authority for section 22 of the Regulations is not warranted if the authorizing section is not found in section 114 of the Act.

I find the applicant's submissions very persuasive. Authority for delegated legislation arises from the enabling provision and cannot be found by looking at the overall intention of the legislation as the respondent contends. Parliament does not act capriciously and the omission of the phrase "whether the admission of any person would cause or might reasonably be expected to cause demands in health or social services" must be presumed to be intentional.

However, I do not find that section 22 of the Regulations is wholly ultra vires paragraph 114(1)(m). Paragraph 114(1)(m) of the Act still permits regulations concerning factors to be considered in determining whether, for medical reasons, any person is likely to be a danger to public health or public safety pursuant to subparagraph 19(1)(a)(i) of the Act. In my interpretation, section 22 of the Regulations should be read as only prescribing the factors to be considered on the health and safety issue. It is not applicable to determining whether the admission of any person would cause or might reasonably be expected to cause demands on health or social services. To that extent, section 22 of the Regulations is ultra vires the Immigration Act. Subparagraph 19(1)(a)(ii) of the Act must be interpreted without reference to the provisions of section 22 of the Regulations.

I agree with Justice Cullen's decision. There is simply no authority in paragraph 114(1)(m) of the Act that authorizes the making of a regulation dealing with excessive demands on health and social services. I find that Regulation 22 is ultra vires as it relates to "excessive demands on health and social services".

[25]            The main issue in this application is whether or not the visa officer erred in finding that the applicant was medically inadmissible to Canada pursuant to subparagraph 19(1)(a)(ii) of the Act. The visa officer's decision is based on the report of the medical officer. A valid medical opinion found under subparagraph 19(1)(a)(ii) is binding on the visa officer. This is only so if the medical report is a valid medical report. As Justice Heald of this Court stated in Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (F.C.T.D.) at page 292:

In my view, when a valid medical opinion is formed under s. 19(1)(a)(ii), that opinion is binding on the visa officer. However, where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice, an error of jurisdiction is involved. It cannot be said to be a valid opinion under s. 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and his or her decision may be reviewed in this court on that basis. It should also be noted that there is at present no impediment to an affected individual seeking judicial review of the medical opinion itself.

[26]            In Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (F.C.T.D.) Wetston, J. of this Court stated at page 313:

. . . The Medical Officers will err if they fail to consider whether the demand created by any particular medical condition is excessive without relying upon some evidence concerning the supply of that particular health or social service in Canada.

Although Ma, supra was made in reference to section 22 of the Immigration Regulations, I am of the view that the same result follows from a consideration of paragraph 19(1)(a) of the Act. When considering whether the demand created by any particular medical condition is an excessive demand on health or social services, a medical officer must have some evidence before him relating to the supply of that health or social service in Canada.

[27]            When the medical report in this case is reviewed, it is obvious that the assessment of excessive demands was based solely on the cost of providing these services. The medical notification of Dr. J. Saint-Germain, concurred in by Dr. W. G. Waddell states in part:

Since then, she is being monitored closely as she is on cyclosporine, a costly anti-rejection medication which the applicant should take for an indefinite period of time. If admitted to Canada, she would qualify for the free supply of immunosuppressors. This would place excessive demand on Canadian health services.

There is no mention of the availability or supply of the two immunosuppressors used by the applicant. The respondent filed the affidavit of Dr. W.G. Waddell. At paragraph 9 of his affidavit, Dr. Waddell states the following:

As stated in the Medical Notification Report, it was my opinion that the Applicant's drug therapy resulting from her kidney transplant, would place an excessive demand on Canadian health services.

And at paragraphs 11, 15, 18, and 20:

11.            In my opinion, this is a minimal immunosupressive [sic] regime for a post-kidney transplant patient. I should add, immunospressive [sic] drugs are continued indefinitely following renal transplant in Canada and it is anticipated that this drug regime would be a continuous one for the Applicant.

. . .

15.            It was my opinion that the Applicant's immunosuppressant drug therapy, costing $2965 annually and to be continued indefinitely, would place an excessive demand on Canadian health services. I note that the amount of $2965 does not include any of the additional medical expenses which would be incurred by the Applicant, including costs of routine testing and doctors visits associated with a post-transplant patient as well as normal medical care associated with a young healthy woman.

. . .

18.            In response to the Affidavit of Ms. Manto, I state that we realized that the Applicant was young and in good health. The reason for our opinion that Ms. Manto was medically inadmissible (M5) was the cost of the immunosuppressive agents, primarily cyclosporine.

. . .

20.            Ms. Manto suggested that the cost of the immunosupressive [sic] drugs may decrease in the future. However at the time I conducted the assessment I was not provided with any such evidence and I believe that the costs outlined above for the drugs required by Ms. Manto are a reasonable assessment of her future costs.

[28]            Pelletier J. in Poon v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. (3d) 75 (F.C.T.D.) states at pages 83 to 84:

Campbell J. considered whether a medical opinion can be invalidated by a failure to consider the question of supply of services in Shan v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1103 (QL) at paras. 3-5:

Respecting the quality of the opinion expressed in italics in the notification, in Fei v. Canada (The Minister of Citizenship and Immigration) 1997, 39 Imm. L.R. (2d) 266, Heald J. at 280 found that an opinion in the exact same terms was deficient. In that case Heald J. decided that, on the evidence before him, the opinion was based on only the cost and not the supply of required services. In this case I have come to a similar conclusion.

In this case, I find that the opinion that "these are expensive modalities, often in short supply for other Canadians" is a cursory statement which precisely focuses on cost and imprecisely and marginally refers to the supply of required services. As such, it is a deficient evidentiary base for the decision reached by the visa officer because there is no individual focus on the medical problems found and the individual supply of health or social services available to treat these problems, and no analysis as to whether such treatment would cause or might reasonably be expected to cause excessive demands on those health or social services. In my opinion, these are required findings before a decision under s. 19(1)(a)(ii) can be properly supported.

Thus, I find that the visa officer had insufficient evidence upon which to base the decision against the applicant and, therefore, find a reviewable error in law under s. 18.1(4)(c) of the Federal Court Act. Accordingly, the decision is set aside and the matter is referred to another visa officer for redetermination on the direction that the medical condition of the child concerned be considered as of the date of the redetermination.

When one considers the medical reports in this course, they appear to conclude that demand will be excessive purely on the basis of the cost of the services required. This is not one of the factors which the medical consultants are required to consider pursuant to section 22 of the Immigration Regulations, 1978. Cost alone cannot be the determining factor. If it were, one would expect the statute and the regulations to refer to excessive cost instead of excessive demand. On the other hand, cost is not irrelevant. High cost services are often high demand services. One has only to think of the public debate about private MRI clinics to appreciate that some high cost services are also high demand services. As pointed out in Ma v. Canada, supra, some consideration must be given to the question of the supply of services in order to conclude that demand would be excessive. I am unable to find any consideration of supply in the record. . . .

[29]            I find that the medical report is deficient in that it does not discuss the matter of supply of the services but only the cost. As a result of the medical officer not discussing supply, the medical report was made on an insufficient evidentiary base and it is not a valid opinion pursuant to subparagraph 19(1)(a)(ii) of the Act (see Fei, supra at page 292). Since the visa officer's opinion was based on an invalid medical report, the visa officer has erred in law and her decision is therefore subject to review by this Court.

[30]            The application for judicial review is allowed and the decision of the visa officer is set aside. The matter is remitted to a different visa officer and different medical officers for a new determination.

[31]            I have reviewed the question submitted to me by the parties and I am not prepared to certify a serious question of general importance.

ORDER

[32]            IT IS ORDERED that the application for judicial review is allowed, the decision of the visa officer is set aside, and the matter is remitted to a different visa officer and different medical officer for a new determination.

                                                                               "John A. O'Keefe"             

                                                                                               J.F.C.C.                     

Ottawa, Ontario

June 1, 2001