Date: 20101214
Docket: IMM-6201-09
Citation: 2010 FC 1285
Ottawa, Ontario, December 14, 2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
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KATARINA ALEKSIC
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
application review concerns a November 24, 2009 decision of the Immigration
Appeal Division (IAD) denying the Applicant’s appeal of the refusal by a visa
officer to grant a permanent resident under a family class sponsorship for the
Applicant’s elderly parents because of the inadmissibility of the Applicant’s
father due to poor health.
[2]
For
reasons that follow, I am dismissing this application for judicial review.
Background
[3]
Ms.
Katarina Aleksic (the Applicant) was born in Serbia and landed
in Canada on August
15, 1996, where she became a Canadian citizen. She and her husband are
pharmacists. Over the years, her parents, both Serbian, have come to Canada to spend
several winter months with the Applicant and her sister and to visit their
grandchildren.
[4]
The
Applicant applied to sponsor her parents for permanent residence. On August 30,
2006, the visa officer informed the Applicant that her parents might be
inadmissible due to her father’s health conditions. The Applicant submitted
materials and submissions in response to the visa officer’s notification.
[5]
On
November 16, 2006, the visa officer informed the Applicant’s parents that they did
not meet the requirements for immigration to Canada, outlining
the following:
Pursuant
to paragraph 38(1) of the Immigration and Refugee Protection Act (IRPA)
your family member, Jezdimir Aleksic, is a person whose health conditions,
ischemic heart disease – chronic and chronic obstructive pulmonary disease,
might reasonably be expected to cause excessive demand on health or social
services …As a result you are inadmissible to Canada
on health grounds.
[6]
The
Applicant appealed this decision. A hearing at the Immigration Appeal Division
was held on October 5, 2009.
Decision
Under Review
[7]
In
its decision dated November 24, 2009, the Immigration Appeal Division
considered whether the refusal was valid in law having regard to the facts, and,
if so, whether relief should be granted on humanitarian and compassionate
grounds.
[8]
The
IAD referenced section 38(c) of IRPA which provides that a foreign
national may be determined to be inadmissible on medical grounds if their
health condition might reasonably be expected to cause excessive demand on
health or social services. It considered the definition for excessive demand as
defined in section 1(1) of the Immigration and Refugee Regulations, SOR/2002-227.
[9]
It
considered whether there was a defect in the refusal, including failure to
disclose the medical condition, failure to give notice, failure by medical
officers to base their opinion on medical evidence, or reasonably conclude excessive
demand arises in the circumstances of the case at hand.
[10]
The
IAD found that the visa officer’s notification letter properly described the
nature of the father’s medical condition, the Applicant had been given an
opportunity to provide additional information to contest the preliminary medical
assessment, and the medical assessment was comprehensive and based on medical
evidence.
[11]
The
IAD took note of the Applicant’s submissions. Both the Applicant and her
husband had testified that her father was an active person and never
hospitalized in Canada. The Applicant submitted that her father would
not require medical services described in the medical assessment. Moreover, the
Applicant paid for his oxygen costs.
[12]
The
IAD held that while both were health professionals (pharmacists), neither of
them were “physicians qualified to give a medical determination of the
potential for the applicant’s health condition to cause excessive demand on the
Canadian system.”
[13]
The
IAD noted that while reunification of families is a cornerstone of Canada’s
immigration, it must be balanced against the need to protect access to health
social services by Canadians and permanent residents.
[14]
The
IAD considered that the family still had opportunities to maintain family ties,
although more difficult. It also concluded the best interests of the children
involved would still be served as they would be able to benefit from time with
their grandparents under the current arrangements. The IAD declined to grant
humanitarian and compassionate relief.
Legislation
[15]
The Immigration and Refugee Protection Act, 2001, c.27 (IRPA)
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3. (1) The objectives of this Act with
respect to immigration are
(d) to see that families are reunited
in Canada;
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3. (1) En matière d’immigration, la
présente loi a pour objet:
d) de veiller à la réunification des
familles au Canada
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38. (1) A foreign national is
inadmissible on health grounds if their health condition
(c) might reasonably be expected to
cause excessive demand on health or social services.
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38. (1) Emporte, sauf pour le résident
permanent, interdiction de territoire pour motifs sanitaires l’état de santé
de l’étranger constituant vraisemblablement un danger pour la santé ou la
sécurité publiques ou risquant d’entraîner un fardeau excessif pour les
services sociaux ou de santé.
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42. A foreign national, other than a
protected person, is inadmissible on grounds of an inadmissible family member
if
(a) their accompanying family
member or, in prescribed circumstances, their non-accompanying family member
is inadmissible;
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42. Emportent, sauf pour le résident
permanent ou une personne protégée, interdiction de territoire pour
inadmissibilité familiale les faits suivants :
a) l’interdiction de territoire
frappant tout membre de sa famille qui l’accompagne ou qui, dans les cas
réglementaires, ne l’accompagne pas;
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The
Immigration and Refugee Protection Regulations (SOR/2002-227)
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1.(1)…
“excessive
demand” means
(a)
a demand on health services or social services for which the anticipated
costs would likely exceed average Canadian per capita health services and
social services costs over a period of five consecutive years immediately
following the most recent medical examination required by these Regulations,
unless there is evidence that significant costs are likely to be incurred
beyond that period, in which case the period is no more than 10 consecutive
years; or
(b)
a demand on health services or social services that would add to existing
waiting lists and would increase the rate of mortality and morbidity in
Canada as a result of an inability to provide timely services to Canadian
citizens or permanent residents.
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1.(1)…
« fardeau excessif » Se dit :
a) de toute charge pour les services
sociaux ou les services de santé dont le coût prévisible dépasse la moyenne,
par habitant au Canada, des dépenses pour les services de santé et pour les
services sociaux sur une période de cinq années consécutives suivant la plus
récente visite médicale exigée par le présent règlement ou, s’il y a lieu de
croire que des dépenses importantes devront probablement être faites après
cette période, sur une période d’au plus dix années consécutives;
b) de toute charge pour les services
sociaux ou les services de santé qui viendrait allonger les listes d’attente
actuelles et qui augmenterait le taux de mortalité et de morbidité au Canada
vu l’impossibilité d’offrir en temps voulu ces services aux citoyens canadiens
ou aux résidents permanents.
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Issues
[16]
I
would pose the issues as follows:
1.
Did
the IAD conduct a proper analysis, taking into account all the relevant
evidence that was before it?
2.
Did
the IAD err in rejecting the Hilewitz arrangement of having the Applicant
privately pay for her father’s medical costs?
3.
Did
the IAD err in declining to grant humanitarian and compassionate relief?
Standard of
Review
[17]
The
Supreme Court of Canada established two standards of review in Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, reasonableness and
correctness. A reviewing court may consider and apply past jurisprudence which
has already established the standard of review for a particular case.
[18]
Case
law has applied the standard of reasonableness to Immigration Appeal Division
decisions regarding medical inadmissibility: Vazirizadeh v Canada (Minister
of Citizenship and Immigration), 2009 FC 807, Vashishat v Canada (Minister of
Citizenship and Immigration), 2008 FC 1346. As such, the standard of review
of the IAD’s decision in this matter, a question of mixed fact and law, is
reasonableness as set out in Dunsmuir v New Brunswick, 2008 SCC 9
at para 47.
Analysis
Relevant
Evidence in the Board’s Analysis
[19]
The
Applicant submits that the assessment by the medical officer was generic rather
than individual as required by in Hilewitz v Canada
(Minister of Citizenship and Immigration) 2005 SCC 57 [Hilewitz]. As
an example, the Applicant also points out that she and her husband had
submitted reports on her father’s conditions, and that she had relayed a doctor’s
report indicating that her father’s condition was not likely to change suddenly
and that he would not require corrective surgery as his health was such that he
could not survive such procedures. The Applicant submits that these reports
were not considered in the assessment.
[20]
I
note that there was medical evidence before the IAD which it considered. I
also note that although the Applicant complained of the assessment being
generic rather than an individualized assessment of her father’s condition, the
finding of the father’s serious medical condition and strong history of
ischaemic heart disease complicated by the presence of arterial hypertension is
not in dispute. Neither is his chronic obstructive pulmonary condition.
[21]
In
the visa officer’s letter of August 30, 2006 inviting the Applicant to make
further submissions on her father’s medical condition, the officer makes
reference to the medical notification prepared by the medical officer regarding
the Applicant’s father. This medical notification contains the following
observation:
This
72 year old applicant has a long history of ischemic heart disease complicated
by the presence of arterial hypertension as well as increased serum
cholesterol, all for which he requires several medications. He reports that he
had a positive coronary angiogram (showing coronary stenosis) but has been
treated medically rather than surgically.
Mr.
Aleksic also has chronic obstructive pulmonary disease. His pulmonary function
results show a markedly decreased FEV1 (forced expiratory volume in 1 second)
of only 34% of his predicted value placing him in the severe category for this
condition. His blood oxygen saturation (Sa02) at rest of also below normal
being only 91% (N:>98%) with desaturation occurring during exercise with the
Sa02 decreasing to 85% after walking for give minutes. His resting level of
oxygen is currently very near the level where it could be expected that home
oxygen would be required. The pulmonary disease is also evident on the chest
X-ray with emphysematous changes evident, along with a dilated central
pulmonary artery indicating chronic pulmonary hypertension. He requires
multiple medications to improve his breathing capacity…
This medical notification, included in evidence
before the IAD, clearly contains an individualized assessment of the
Applicant’s father’s medical condition.
[22]
The
medical officer’s assessment went on to note that the natural history for
ischemic heart disease is “progression requiring the on-going care and
management by specialists.” Similarly, the medical officer wrote the natural
course of chronic obstructive pulmonary disease is “progression and
deterioration.” The medical officer opined that the progression for both might
be reasonably expected to cause excessive demand on health services.
[23]
The
Applicant’s submissions sought to hold up her father’s past positive health
history as predictive of future health. That does not displace the medical
officer’s prognosis based on the review of her father’s specific medical
diagnosis and comparison as against the normal progression of his illnesses.
[24]
The
Applicant claims her father has no need for future costly medical surgery, but,
as the Respondent points out, the Applicant did not provide a
doctor’s report that her father could not undergo any surgical medical
procedures, but rather referred to a conversation with a medical doctor in
Belgrade who so advised her. The IAD properly did not consider this hearsay
information.
[25]
The
IAD did not err in noting that the Applicant and her husband, although health
professionals, were not physicians qualified to give a medical opinion of her
father’s health. The Applicant’s evidence did not otherwise significantly
challenge the validity and accuracy of the medical officer’s medical report.
The Hilewitz Arrangement
[26]
The
Applicant submits that the IAD failed to consider the fact that OHIP would not
cover medication and oxygen for her father, and that she had offered to pay for
medication and oxygen. As a result, the Applicant submits that the IAD should
not have rejected the Hilewitz arrangement that she had proposed.
[27]
Although
the Respondent submits that this Court has already confirmed in Lee v Canada
(M.C.I.), 2006 FC 1461 that Hilewitz did not equally extend to publicly
funded health services, I find there is an exception in Jafarian v Canada
(M.C.I.), 2010 FC 40, [2010] 360 FTR 150, where the Court
extended the
principles enunciated in Hilewitz to prescription drugs as long as the
majority of the funds for the prescription drug in question are not contributed
by governments.
[28]
However,
the medical evidence shows that the Applicant’s father would require more than
medication and oxygen, and was expected to likely require ongoing care and
management by specialists in various fields of medicine, health services
provided by government.
[29]
There
was no indication that the IAD misapprehended the scope of health care services
that the Applicant’s father would have required in the future. The IAD did not
err in rejecting the Hilewitz arrangement of having the Applicant
privately pay for her father’s medical costs, since Hilewitz dealt
specifically with an applicant’s ability to pay for social services and not
health services.
[30]
I
find that the IAD conducted a proper analysis of the visa officer’s refusal
decision, taking into account the relevant medical evidence that was before the
officer. Its conclusion that the Applicant had not met her burden of proof is
reasonable.
Humanitarian and Compassionate Relief
[31]
The
Applicant submits that the IAD ignored the evidence of hardship her father
would face with air travel, and the financial impact she would deal with if she
had to move back to Serbia to be with her
parents. The Applicant also submits that the IAD had merely paid lip service
to the concept of the children’s best interest, concept of reunification of
family, and hardship for each family member.
[32]
The
IAD was aware that coming to Canada as visitors was increasingly difficult for
the Applicant’s parents. The IAD also recognized the difficulty that the
Applicant would face if she had to move back to Serbia to care for
them. It repeated in detail the Applicant’s argument about the childcare
support provided by her parents for the children and found the Applicant had
options, while not convenient or easy, open to the family. There was no indication
that the IAD ignored or misapprehended any material aspect of the Applicant’s
position.
[33]
It
is clear that the IAD considered the Applicant’s concerns when making its
decision, but it
was reasonable for the IAD in the exercise of its discretion to give greater
weight to the enforcement of the medical inadmissibility provision under
section 38 of IRPA. It was open to the IAD to balance in the way
that it did the policy of family reunification against the need to protect the
Canadian health care system from excessive demands on health services.
[34]
The
granting of humanitarian and compassionate relief is discretionary, and I
conclude the IAD did examine these humanitarian and compassionate considerations
while balancing them out with the need to protect access to health care
services. The IAD’s decision was reasonable, being within the range of
acceptable outcomes.
Questions for
Certification
[35]
The
Applicant submitted the following questions for certification:
1. The criteria subtending a valid
medical opinion reached under the Immigration legislation was clarified in
February of 2005 by the case of Hilewitz. In Hilewitz the Supreme
Court of Canada held that a valid medical opinion needs to assess the applicant
in his uniqueness by way of an individualized assessment and based upon the
probability of the use of services rather than merely stating the eligibility
of such services. Does this dicta apply for medical services or do the
principles enunciated in Hilewitz apply only to individuals attracting
social services?
2. Is the medical/visa officer/IAD
required to take into account both medical and non-medical factors, such as
the availability, scarcity or cost of publicly funded services, along with the
willingness and ability of the applicant or his or her family to pay for the
services?
3. Can the medical/visa officer/ IAD
determine the nature or the severity or probable duration of health impairment
without do so in relation to a given individual?
4. Can the medical officer/visa officer/IAD
attach a cost assessment to a disability or health condition based on the
classification of the impairment rather than on its manifestation in an
individual and without analyzing whether that particular individual would
reasonably cause excessive demands on public funds?
5. Is the medical officer/visa officer/IAD
required to assess all medical and non-medical factors?
6. Is it the visa officer or the medical
officer that needs to resolve all of the medical and non-medical information
contained in the fairness letter? Can the visa officer substitute his opinion
on any of these matters?
7. In assessing the legality of the
visa/medical officer’s decision is the IAD correct in concluding that
individualized assessment of excessive demands as enunciated in Hilewitz does
not apply with regards to medical services?
8. In limiting application of
individualized assessment to social services, does such limitation colour the
IAD’s H&C jurisdiction and leading exclusion of all deserving factors?
[36]
The
Respondent objected to the certification of the Applicant’s questions on the
grounds that the Applicant submitted the questions out of time and that the
Applicant has not addressed the requirements to justify certification of
questions under section 74(d) of IRPA.
[37]
In
order to be certified, a proposed question must transcend the interests of the
immediate parties to the litigation and contemplate issues of broad
significance or general application, while also being determinative of the
appeal: Canada (Minister of Citizenship and Immigration) v Liyanagamage (1994),
176 NR 4 (FCA). I will address each proposed question.
[38]
Questions
1, 3 and 4 address the same underlying issue of whether an assessment must be
individualized. The principle that an assessment of one’s reliance on health
services must be individualized has already been accepted in jurisprudence: Jafarian
v Canada (Minister of
Citizenship and Immigration), 2010 FC 40 at para 23.
[39]
Question
2, which is virtually identical to the issue in question 5 regarding the
requirement to look at both medical and non-medical factors, has already been
established in case law: see, for example, Sapru v Canada (Minister of
Citizenship and Immigration), 2010 FC 240 at para 19.
[40]
As
for question 6, the role of the visa officer in relationship to the medical
officer’s opinion has also already been examined in case law: Canada (Minister of
Employment and Immigration) v Jiwanpuri (F.C.A.), [1990] 109 NR 293, 10
Imm LR (2d) 241; and Sapru v Canada (Minister of
Citizenship and Immigration), 2010 FC 240 at para 12-13.
[41]
With
regards to questions 7 and 8, I cannot find any part in the IAD decision
indicating the IAD may have suggested that individualized assessment of
excessive demands as enunciated in Hilewitz does not apply with regards
to medical service. The Applicant may have misunderstood paragraph 12 of the
IAD’s decision, where the IAD concluded that the Applicant could not make an
arrangement similar to Hilewitz to pay for her father’s medical costs
since such costs are provided by government. This question has already been
settled in jurisprudence.
[42]
In
result, I see no need for a certified question along the lines proposed by the
Applicant.
Conclusion
[43]
For
these reasons, I therefore dismiss this application for judicial review of the
board’s decision.
JUDGMENT
THIS COURT
ORDERS and adjudges that:
1. The
application for judicial review is dismissed.
2. I do not
certify any questions of general importance.
3. I make no
order for costs.
“Leonard
S. Mandamin”
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