Date: 20100216
Docket: IMM-4737-08
Citation: 2010 FC 157
Toronto, Ontario,
February 16, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
AL-KARIM
EBRAHIM RASHID
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on
September 18, 2008 at the High Commission of Canada in Nairobi, Kenya, by visa officer
C. Glover who found the applicant to be medically inadmissible to Canada. For
the reasons that follow, the application will be dismissed.
Background
[2]
Mr.
Al-Karim Ebrahim Rashid, the applicant, applied for a permanent resident visa
under the Federal Skilled Worker Program at the High Commission in Nairobi, Kenya, on January
13, 2004.
[3]
The
applicant is HIV positive and asymptomatic, meaning the virus is present but
does not manifest any visible symptoms. He contracted HIV in 1996 from
contaminated blood in Tanzania.
[4]
The
High Commission found that while the applicant had met the requirements of the
Federal Skilled Worker Program, he was inadmissible pursuant to subsection
38(1) of the IRPA.
A medical officer determined that the costs
of the treatment required for the applicant’s condition would likely exceed the
amount spent on the average Canadian and would delay or deny provision of those
services to those in Canada who might need them.
[5]
In
reply to the medical officer’s findings, the applicant submitted additional
documents on March 21, 2007 and on May 1, 2008. These documents consisted of
statements of the applicant’s financial resources, a letter of support and
financial documents from the applicant’s sister who agreed to support him for
his first five years in Canada, letters from two Canadian doctors who also agreed
to contribute to his support and a medical report from the Aga Khan Hospital in Nairobi.
[6]
In
September 2008, medical officer Dr. Kerry Kennedy reviewed the additional
documents and concluded that the information provided by the applicant did not
alter the opinion that the applicant’s admission to Canada might
reasonably be expected to cause excessive demand on health services.
[7]
Acknowledging
that some HIV-infected applicants will not cross the threshold for excessive
demand and thereby qualify for admittance into Canada, Dr. Kennedy
found that Mr. Rashid was on a regimen of medication that cost about USD
10,000.00 per year. There is no dispute between the parties that this amount is
well in excess of the health cost threshold.
[8]
Dr.
Kennedy also found that should Mr. Rashid’s positive response to the medication
diminish, he would likely be placed on newer anti-viral medications which are,
generally, as expensive or more expensive that the drugs that he is presently
taking.
Decision Under Review
[9]
On
September 18, 2008, the visa officer found that the applicant was medically
inadmissible to Canada and rejected his visa application. The visa officer’s
letter, dated September 18, 2009, constitutes his reasons for decision together
with Computer Assisted Immigration Processing System notes, dated September
16-17, 2008.
Issues
[10]
The
sole issue is whether the visa officer's decision, through the assessment of
the medical officer, constitutes a reasonable finding that the applicant is
inadmissible pursuant to paragraph 38(1) (c) of the IRPA.
Analysis
[11]
Several
decisions of this Court have held that Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] S.C.J. No. 9, has not changed the law in respect of factual
findings subject to the limitation in paragraph 18.1(4)(d) of the Federal
Courts Act: De Medeiros v. Canada (Minister of Citizenship and
Immigration), 2008 FC 386, [2008] F.C.J. No. 509; Obeid v. Canada
(Minister of Citizenship and Immigration), 2008 FC 503, [2008] F.C.J. No.
633; Naumets v. Canada (Minister of Citizenship and Immigration), 2008
FC 522, [2008] F.C.J. No. 655.
[12]
It
has also been held that a tribunal’s decision concerning questions of fact is
reviewable upon the standard of reasonableness: Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515, see
also Navarro v. Canada (Minister of
Citizenship and Immigration), 2008 FC 358, [2008] F.C.J. No. 463, at
paras. 11-15.
[13]
The
visa officer’s factually intensive analysis and application of discretion are
central to the officer’s role as a trier of fact. As such, these findings are
to be given significant deference by the reviewing Court. The visa officer’s factual
findings should stand unless the reasoning process was flawed and the resulting
decision falls outside the range of possible, acceptable outcomes which are
defensible in respect of the facts and the law: Dunsmuir, supra, at
para. 47.
[14]
In
Gao v. Canada (Minister of Employment and Immigration), (1993), 61
F.T.R. 65, [1993] F.C.J. No. 114, at pp.
317-318, Justice Dubé had discussed the standard of review of a finding of fact
made by a medical officer in the following terms:
Most of the case law relating to medical
inadmissibility decisions by visa or Immigration Officers has issued from
appellate bodies. The general principles arising from these cases are of course
relevant to a judicial review application seeking to quash an Immigration
Officer's decision.
The governing principle arising from this
body of jurisprudence is that reviewing or appellate courts are not competent
to make findings of fact related to the medical diagnosis, but are competent to
review the evidence to determine whether the medical officers' opinion is
reasonable in the circumstances of the case. Canada (M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293
(F.C.A.). The reasonableness of a medical opinion is to be assessed not only as
of the time it was given, but also as of the time it was relied upon by the
Immigration Officer, since it is that decision which is being reviewed or
appealed, Jiwanpuri. The grounds of unreasonableness include incoherence
or inconsistency, absence of supporting evidence, failure to consider cogent
evidence, or failure to consider the factors stipulated in section 22 of the
Regulations. [some citations removed].
[15]
In
Barnash v. Canada (Minister of
Citizenship and Immigration), 2009 FC 842, [2009] F.C.J. No. 990, at para. 20, Justice
Mandamin referred to Gao in holding that given the specialized nature of
the medical officer’s opinion, reasonableness is the appropriate standard of
review for the factual component of the decision. I agree with that conclusion.
[16]
No
deference is due if the Court determines that an administrative decision-maker
has failed to adhere to the principles of procedural fairness: Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539, at para. 100. Such matters continue to fall within the supervising
function of the Court on judicial review: Dunsmuir, supra, at
paras. 129 and 151.
[17]
In a
case such as this one, there might be more than one reasonable outcome.
However, as long as the process adopted by the visa officer and its outcome
fits comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] S.C.J. No. 12, para. 59.
[18]
Mr.
Rashid relies on the Supreme Court of Canada's decision in Hilewitz v.
Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister
of Citizenship and Immigration), 2005 SCC 57, [2005] S.C.J. No. 58 (Hilewitz)
to argue that, as in the case of social services, a person in the applicant's
position can pay for his own medical health services: in this case, the cost of
out-patient prescription anti-viral drugs.
[19]
Noting
that Justice Campbell found a distinction between social and health services,
in Lee v. Canada (Minister of Citizenship and Immigration), 2006 FC
1461, [2006] F.C.J. No. 1841, the respondent submits that the Hilewitz
principles cannot be read as automatically extending to the health services
context as the applicant suggests: Lee, at para. 6.
[20]
Justice
Harrington recently held in Companioni v. Canada (Minister of Citizenship
and Immigration), 2009 FC 1315, [2009]
F.C.J. No. 1688, at paragraph 10, that Hilewitz was equally
applicable to any consideration as to whether the cost of out-patient drugs
would constitute an excessive demand on health services. He considered that the
Minister’s reliance, in that case, on the decision of the Federal Court of
Appeal in Deol v. Canada (Minister of Citizenship and Immigration), 2002
FCA 271, [2003] 1 F.C. 301 as supporting a general principle that ability to
pay for health services should never be considered, was misplaced.
[21]
Justice
Harrington found, however, that there was a fundamental distinction between
social services, the cost of which the province was entitled to recover, as a
matter of law, from those who can afford to pay and the supply of out-patient
drugs. In Ontario, by virtue
of the provincial Trillium Drug Program, most of the cost of the drugs in
question would be paid by the province. The visa officer had properly
considered that factor but had failed, in conducting the personalized
assessment required by Hilewitz, to determine whether the applicant had
a viable plan to cover the costs, such as a personal insurance plan or an
employer-based group policy. For that reason, the application was granted and
the matter was sent back for reconsideration: Companioni, above, at
para. 27.
[22]
In
the case of Mr. Rashid, I am not satisfied that the applicant has met the
burden of demonstrating that the visa officer, through the medical officer’s
assessment, made an erroneous finding: Vazirizadeh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 807, [2009]
F.C.J. No. 919, at para. 26.
[23]
The
facts of this matter are distinguishable from those in Companioni, in my
view. In that case, one of the two applicants had a personal insurance policy
that covered prescription drug costs and the second was covered by an
employer-based group policy, either or both of which might have continued to
apply if the applicants relocated to Canada. In the present matter, the
applicant is relying on the personal commitments of his sister and two others. It
is trite law that they can’t be held to those commitments: Companioni,
at para. 30. As stated by Justice Evans for the Federal Court of Appeal in Deol,
above, at paragraph 46:
46 … As has been held in several
previous cases, it is not possible to enforce a personal undertaking to pay
for health services that may be required after a person has been admitted to
Canada as a permanent resident, if the services are available without
payment. The Minister has no power to admit a person as a permanent resident on
the condition that the person either does not make a claim on the health
insurance plans in the provinces, or promises to reimburse the costs of any
services required. See, for example, Choi v. Canada (Minister of Citizenship and
Immigration),
(1995), 98 F.T.R. 308 at para. 30; Cabaldon v. Canada (Minister of Citizenship and
Immigration),
(1998), 140 F.T.R. 296 at para. 8; Poon, supra, at paras. 18-19. [My
Emphasis]
[24]
Mr.
Rashid would be eligible for coverage under the provincial Trillium Drug
Program if he was to become resident in Ontario, as
intended, once a valid Ontario Health Card is issued to him and upon demonstrating
high prescription drug costs in relation to his net household income.
[25]
The
visa officer did not ignore the new financial support documents submitted by
the applicant in March 2007 and May 2008, nor did the medical officer make any
unreasonable error of fact when he found that the new documents did not change
the notification of medical inadmissibility previously signed by his colleague.
The medical officer’s opinion, adopted by the visa officer, that the estimated cost
of Mr. Rashid’s medication would be well in excess of the health cost threshold
and that it would constitute an excessive demand was a personalized assessment
based on the evidence.
[26]
Even
if I were to find that the visa officer did err in assessing the applicant's
financial ability to pay for his own prescription drugs, this is not a case in
which it would be appropriate to send the matter back to a different
visa officer for reconsideration. The plan that was put forward by the
applicant was based upon personal commitments to pay for the required health
services. Given the non-enforceability of those commitments and the expected
eligibility of the applicant under Ontario’s Trillium Drug Program, I
do not see how a different visa officer could reach any other conclusion than
excessive demand in this case.
[27]
I
conclude that the visa officer’s determination that the applicant does not meet
the requirements for immigration to Canada, pursuant to paragraph
38(1)(c) of the IRPA, was reasonable and within the range of possible and acceptable
outcomes:
Dunsmuir, supra, at para.
47.
[28]
As I
find the overall result in this case to be reasonable, and given the
specialized nature of the medical officer’s opinion in this case, it is not open to this
reviewing court to substitute its own view of a preferable outcome: Dunsmuir,
supra, at para. 47; Barnash, supra, at para.
20;
Khosa, supra, at para.
59. Accordingly, this application will be dismissed.
[29]
The parties were given an opportunity to propose questions
for certification. As
set out in paragraph 74(d) of the IRPA and Rule 18(1) of the Federal Courts
Immigration and Refugee Protection Rules / SOR 93-22, as amended, there can
be no appeal of this decision if the Court does not certify a question.
[30]
The
applicant submits that the question certified by Justice Harrington in Companioni,
above, should also be certified in this application for judicial review. That
question is as follows:
Is the ability and willingness of
applicants to defray the cost of their out-patient prescription drug medication
(in keeping with the provincial/territorial regulations regulating the
government payment of prescription drugs) a relevant consideration in assessing
whether the demands presented by an applicant’s health condition constitute an
excessive demand?
[31]
The
respondent submits the following question for certification:
When a medical officer has determined
that an applicant will be in need of prescription drugs, the cost of which
would place the applicant over the threshold of “excessive demand” as set out
in the Immigration and Refugee Protection Regulations, must a visa officer
assess the applicant’s ability to pay for the prescription drugs privately when
those same drugs are covered by a government program for which the applicant
would be eligible in the province/territory of intended residence?
[32]
In Zazai
v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 89, [2004] F.C.J. No. 368, the
threshold for certification was articulated by the Federal Court of Appeal as:
"is there a serious question of general importance which would be
dispositive of an appeal" (paragraph 11).
[33]
In Kunkel
v. Canada (Minister of
Citizenship and Immigration), 2009 FCA 347, [2009] F.C.J. No. 170, at para.
8, citing its 2006 decision
in Boni v. Canada (Minister of Citizenship and
Immigration), 2006 FCA
68, [2006] F.C.J. No. 275, at para.10, the Federal Court of Appeal determined
that a certified question must lend itself to a generic approach leading to an
answer of general application. That is, the question must transcend the particular
context in which it arose.
[34]
In Boni, supra,
the Federal Court of Appeal stated that “it would not be appropriate for the
Court to answer the certified question because the answer would not do anything
for the outcome of the case (Canada
(Minister of Citizenship and Immigration) v. Liyanagamage, [1994] F.C.J. No. 1637, (1994) 176 N.R. 4).”
[35]
I am of the view, in
light of the particular facts in this case, that the certification of a
question on the applicant’s ability and willingness to defray the cost of his
anti-viral medication would not meet the test articulated in Kunkel and Boni
and would not be dispositive of an appeal. Such a question would not lend itself to
a generic approach leading to an answer of general application.
[36]
In
contrast, the respondent’s proposed question lends itself to a generic approach
leading to an answer of general application as it is not focused on the ability
and willingness of the applicant to defray the cost of his current drug regimen.
The question addresses the duty of the visa officer to assess the applicant’s
ability to pay for the prescription drugs privately when those same drugs are
covered by a government program. The answer would be dispositive of an appeal and
transcends the particular
context in which it arose.
JUDGMENT
IT IS THE JUDGMENT OF THIS COURT that the
application is dismissed. The following question is certified:
When a medical officer has determined
that an applicant will be in need of prescription drugs, the cost of which would
place the applicant over the threshold of “excessive demand” as set out in the Immigration
and Refugee Protection Regulations, must a visa officer assess the
applicant’s ability to pay for the prescription drugs privately when those same
drugs are covered by a government program for which the applicant would be
eligible in the province/territory of intended residence?
“Richard G. Mosley”
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