Date: 20100429
Docket: IMM-3992-08
Citation: 2010 FC 467
Ottawa, Ontario, April 29,
2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
HASHEM
MAZHARI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[1]
The
Applicant, Mr. Hashem Mazhari, is a citizen of Iran who applied
to come to Canada as a
permanent resident (investor class) in 2005. During his medical assessment in
2007, it was discovered that the Applicant had lung cancer. A 3.5 cm tumour was
removed from his left lung. The cancer had not metastasized and the Applicant,
a non-smoker, remains in generally good health.
[2]
Discovery
of the Applicant’s cancer led to a request from Citizenship and Immigration
Canada (CIC) for further medical examinations. The results were sent to the
senior medical officer (the Medical Officer) with CIC, stationed in Paris, France.
After reviewing and evaluating the Applicant’s medical file, the Medical
Officer prepared a medical opinion, in which he concluded that the Applicant’s
condition might reasonably be expected to cause excessive demand on health and
social services.
[3]
In
accordance with standard CIC procedure, the Applicant was provided with a copy
of the Medical Officer’s opinion in a letter dated September 24, 2007 (the
fairness letter), and asked to respond. The Applicant responded on October 10,
2007 with a letter and a report from Dr. Kian Khodadad. Dr. Khodadad disagreed
with the opinion of the Medical Officer.
[4]
The
Medical Officer issued his final medical opinion in an e-mail dated December
12, 2007, in which he confirmed his initial opinion. This opinion, together
with the report of Dr. Khodadad and the letter of the Applicant, were reviewed
by the Visa Officer. In a decision dated July 20, 2008, the Visa Officer
determined that the Applicant was inadmissible under s. 38(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) because the
Applicant is a person whose health condition might reasonably be expected to
cause excessive demand on the health and social services in Canada.
[5]
The
Applicant seeks judicial review of this decision.
II. Issues
[6]
While
the Applicant raised a number of issues in his Application Record, oral
submissions were directed at the following issues:
1.
Should
the decision of the Visa Officer be overturned:
(a)
because
the Medical Officer failed to conduct an individualized assessment of the
Applicant, in accordance with the principles set out in Hilewitz v. Canada (Minister
of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship
and Immigration),
2005 SCC 57, [2005] 2 S.C.R. 706; or
(b)
because
the opinion was unreasonable?
2.
Did
the Visa Officer err by reaching a decision without having the entire medical
file of the Applicant before her?
III. Statutory
Framework
[7]
The
Applicant was held to be inadmissible to Canada pursuant to s. 38(1)(c) of IRPA,
which provides that “A foreign national is inadmissible on health grounds if
their health condition . . . might reasonably be expected to cause excessive
demand on health or social services”. Certain of the terms used in s. 38(1)(c)
are defined in s. 1 of the Immigration and Refugee Protection Regulations,
S.O.R./2002-227 (IRP Regulations). Section 38(1)(c) and the definitions
of “excessive demand”, “health services” and “social services” are set out in
Appendix “A” to these Reasons.
[8]
Under
s. 20 of IRP Regulations, a visa officer “shall determine that a foreign
national is inadmissible on health grounds if an assessment of their health
condition has been made” by a medical officer, and the medical officer
“concluded that the foreign national’s health condition is likely to be a
danger to public health or public safety or might reasonably be expected to
cause excessive demand.”
IV. Standard of
Review
[9]
The
decision under review is the Visa Officer's decision dated July 20, 2008.
However, as will be discussed below, the Visa Officer's primary role is to
review the Medical Officer's decision. To assess whether that has been done
lawfully, the Court must consider the decision of the Medical Officer. In
recent decisions of this Court (see, for example, Rashid v. Canada (Minister of
Citizenship and Immigration), 2010 FC 157, [2010] F.C.J. No. 183 (QL); Sapru v. Canada (Minister of
Citizenship and Immigration), 2010 FC 240, [2010] F.C.J. No. 270 (QL)), the
standard of review of a medical officer’s decision has been held to be that of
reasonableness. The Court should not interfere with the decision of the officer
if it is justified, transparent, intelligible, and falls within a range of
possible outcomes that are defensible in respect of the law and facts (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47).
[10]
However,
where an applicant alleges that the medical officer or the visa officer failed
to comply with the obligations set down in Hilewitz, above, the standard
of review is correctness. This issue is a question of law (Sapru, above,
at para. 16). Thus, the question of whether a medical officer conducted an
individualized assessment as opposed to a generic assessment is reviewable on a
standard of correctness. Questions of procedural fairness should also be
reviewed on a standard of correctness (Sapru, above, at para. 16; Dunsmuir,
above, at para. 50).
[11]
The
first issue raised by this application has two components. The first is the
question of whether there was an individualized assessment (rather than
generic); this question is reviewable on a standard of correctness. The second
is whether the medical assessment was reasonably open to the Medical Officer.
The issue of whether the Visa Officer was required to review the Applicant’s entire
medical file appears to be a question of law reviewable on a standard of
correctness.
V. Need for an
individualized assessment
[12]
A
medical assessment for purposes of a s. 38(1)(c) must be individualized (see Deol
v. Canada (Minister of
Citizenship and Immigration) 2002 FCA 271, [2003] 1 F.C. 301 at para.
60). As stated by the majority of the Supreme Court in Hilewitz, above, at paragraph 56:
[An assessment of an applicant’s health]
seems to me, requires individualized assessments. It is impossible, for
example, to determine the "nature", "severity" or probable
"duration" of a health impairment without doing so in relation to a
given individual. If the medical officer considers the need for potential
services based only on the classification of the impairment rather than on its
particular manifestation, the assessment becomes generic rather than
individual. It is an approach which attaches a cost assessment to the
disability rather than to the individual. This in turn results in an automatic
exclusion for all individuals with a particular disability, even those whose
admission would not cause, or would not reasonably be expected to cause,
excessive demands on public funds.
[13]
It
is true that Hilewitz deals with the costs of providing social services
rather than health services. However, this portion of the judgment, which
stipulates individualized assessments, is, I believe, equally applicable to a
medical assessment. Stated differently, the Medical Officer would err by
failing to have regard to the Applicant’s individual circumstances. If the
medical assessment is flawed in this manner, it follows that the Visa Officer would
also err in basing her decision on such a report.
[14]
The
next relevant consideration is the interaction between the Medical Officer and
the Visa Officer. Even though the ultimate decision is made by the Visa
Officer, the Visa Officer is not a medical specialist. In light of Hilewitz
(above, at para. 70), the Medical Officer is obliged to perform a complete
analysis of all factors, medical and non-medical (where relevant). The Visa
Officer must then review the Medical Officer's opinion to ensure that all relevant
factors were considered (see, Sapru, above, at para. 24).
VI. Issue #1:
Was the Medical Officer’s assessment individualized and was it reasonable?
[15]
The
Applicant submits that the Medical Officer’s opinion was generic, rather than
the individualized assessment required by Hilewitz. In his opinion, the
Medical Officer, who is not an oncologist, did not take into account key
individualized prognostic factors, and did not respond to extensive authorities
quoted by Dr. Khodadad. There was no basis for his determination that the
Applicant would cause excessive demands on Canada’s health and
social systems. In particular, the Applicant submits that the Medical Officer
did not take into account that:
·
The
tumour was discovered on screening and not because there were symptoms;
·
The
applicant, at age 65, was in excellent health and exercised regularly;
·
The
applicant was a non-smoker; and
·
The
tumour was just marginally greater than 3 cm.
[16]
I
do not agree that the Medical Officer’s December 12, 2007 report was generic
rather than individualized, as stipulated by Hilewitz. A review of the
opinion of the Medical Officer demonstrates that the Medical Officer took into
consideration the information submitted in response to the fairness letter –
specifically, the Applicant’s letter, and Dr. Khodadad’s medical report.
[17]
I
begin by observing that the medical assessment of the Applicant was made within
a few months of his original diagnosis and surgery. This makes the task of
evaluating the potential for recurrence more difficult; he has minimal personal
history of surviving with the disease post‑surgery. Accordingly, the use
of statistic information as contained in the medical literature becomes the
only reasonable way of assessing the likelihood that he will require treatment
in the future. The fact that the Medical Officer relied on such statistical
data does not necessarily make the evaluation non-personalized.
[18]
Most
importantly, the Medical Officer did address authorities in Dr. Khodadad’s
report, and did consider the Applicant’s individualized medical circumstances.
The Medical Officer acknowledged that the Applicant feels he is in “excellent
heath” and that his latest medical check-up indicated he was “free of disease”.
Further, the Medical Officer referred to Dr. Khodadad’s key arguments:
·
that
the Applicant’s “lung cancer was ‘picked up’ incidentally (as a result of
passing an Immigration Medical Examination)”;
·
that
Mr. Mazhari’s cancer, compared to a study in the New England Journal of
Medicine, has a 10 year survival rate of 92%; and
·
that
routine and expensive PET scans are not necessary for follow-up tests.
[19]
To
the study in the New England Journal of Medicine, relied on by Dr. Khodadad,
the Medical Officer responded:
[…] the major difference between the
patients in that study and Mr. Mazhari is that those patients were
screened on a regular basis and their cancers were detected “early” with the
average size of the lung tumour being 9 mm in diameter, at the time of the
diagnosis, while Mr. Mazhari’s cancer was 35 mm in diameter at the time of
surgical resection. With the much larger size of the lesion of Mr. Mazhari’s
lung cancer, at the time of resection, the risk of recurrence and spread of his
cancer would be considered much more likely than those patients enrolled in the
study noted above. As mentioned in the Medical Notification, those patients
with Stage IB lung cancer have a five year survival of 50 to 60% and this only
is in reference to survival and not “disease-free” survival (which is survival
without recurrence of disease) which would be lower than 50 to 60% previously
quoted.
[20]
It
is clear from the excerpt above that the Medical Officer not only considered
Dr. Khodadad’s report, but applied findings of the specific journal
article to the Applicant’s individualized circumstances. Responding to Dr.
Khodadad’s opinion on the use of expensive PET scans, the Medical Officer believed
that, if routine chest x-rays uncovered anomalies in the Applicant’s lungs,
“more sophisticated imaging such as PET and/or CT scanning would certainly be
employed”.
[21]
After
a review of the entire medical file, the Medical Officer acknowledged that the
Applicant has been diagnosed with lung cancer, which was surgically treated in
March 2007. Given the initial staging of IB, the Medical Officer opined that:
[…] over the next five years Mr. Mazhari
will require close follow‑up and in spite of this follow-up there will be
a reasonable risk of recurrence (either locally or to other parts of the body)
of his lung cancer, necessitating additional health and social services which
are both expensive and in high demand.
[22]
From
the above, I find that the Medical Officer’s decision was transparent,
intelligible and that it falls within a realm of reasonable outcomes. The
Applicant appears to be asking the Court to re-weigh evidence put before the Medical
Officer – this is not the role of the Court, particularly on issues of medical
diagnosis. As noted by Justice Mosley (Sapru, above, at para. 13):
[…] 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.
[23]
In
sum, the Medical Officer conducted an individualized assessment, rather than a
generic one. Moreover, the Medical Officer’s conclusion was reasonable in the
circumstances of this case. There is no reviewable error.
VII. Issue #2: Did the Visa Officer err
by not reviewing the entire medical file?
[24]
The
Applicant submits that the Visa Officer erred by not reviewing the entire
medical file of the Applicant. I do not agree.
[25]
As
analyzed above, the Visa Officer does not have the expertise to assess the
Applicant’s medical circumstances and the effects on Canada’s health and social
services. Pursuant to s. 20 of IRP Regulations, the Visa Officer does
not necessarily have the authority to overrule Medical Officer’s conclusions (Sapru,
above, at paras. 25-26). The question is whether the Visa Officer adequately
reviewed the Medical Officer’s decision to ensure that all relevant factors
were considered. This does not require a review of each and every test result
or doctor’s notation. Rather, the test must be whether the Visa Officer had
sufficient information before her to form an opinion on whether all relevant
factors had been considered by the Medical Officer.
[26]
The
Applicant points to jurisprudence of this Court which concludes that the entire
medical record forms part of the record before the Visa Officer (Ismaili v. Canada (Minister of
Citizenship and Immigration) (1995), 100 F.T.R. 139 (T.D.), 29 Imm. L.R.
(2d) 1; Poste v. Canada (Minister of
Citizenship and Immigration) (1997), 140 F.T.R. 126 (T.D.), 42 Imm.
L.R. (2d) 84). I do not read these cases and the facts upon which they were
based as standing for the proposition asserted by the Applicant. Further, I
refer to Fei v. Canada (Minister of Citizenship and Immigration), [1998]
1 F.C. 274 (T.D.), at paragraph 55 and Tong v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 1470 (QL) (T.D.), at
paragraphs 5-6, where Justice Heald concluded, in both cases, that the Visa
Officer was not required to review the entire medical file of an
applicant. Even if Ismaili and Poste can be read as supporting the
Applicant’s position, I observe that they pre-date the clarification of the
respective duties of the Medical Officer and the Visa Officer by the Courts
(including by the Supreme Court of Canada in Hilewitz).
[27]
In
this case, I am satisfied that the Visa Officer had, before her, sufficient
evidence to find as she did. In her affidavit, the Visa Officer, stated:
On
July 20, 2008, I reviewed the entire case history. I reviewed the original
medical assessment by Dr. Gollish, the Applicant’s submissions in response to
the procedural fairness letter, as well as the medical assessment rendered by
Dr. Gollish’s after reviewing the Applicant’s submissions. My review of the
materials on file satisfied me that Dr. Gollish had considered all the
Applicant’s submissions during his consideration of the materials in arriving
at his assessment. There was no obvious error on the face of the record to
cause me to question the assessment. I also reviewed the email dated July
15, 2008 from Cecil Rotenberg to ensure that all information submitted by the
Applicant was duly considered prior to a decision being made. [Emphasis added.]
[28]
There
is simply nothing contained in the detailed medical file that would have added
materially to or affected the Visa Officer’s determination. There is no error.
VIII. Certified
Questions
[29]
The
Applicant proposes three certified questions:
(a)
Do
paragraphs 54-57 of the Supreme Court of Canada in Hilewitz, above, require
an active inquiry by the medical officer of health before a determination of
any kind is made by that officer and then, once achieved, does that
determination then have to be forwarded to both the visa officer and the
applicant with reasons, for potential rebuttal by reason of fairness.
(b)
Where
there is a preliminary determination (the words used in the fairness letter)
without an individualized assessment, [does] the fairness procedure, utilized
by the visa officer, provide the opportunity to correct this defect?
(c)
Does
the decision in Poste, above, at paragraph 61 set out good law and does
the simple statement that the medical officer of health has reviewed the
responses to the fairness letter of the applicant without changing his original
opinion and without resolving the contrary submissions contained in the
fairness response satisfy the procedural fairness or natural justice?
[30]
If
the first question is simply whether an individualized assessment is required,
this question has been answered in the affirmative by Hilewitz and other
jurisprudence. There is no need for certification. Alternatively, the Applicant
seems to be asserting that there must be an active consultation between the
Medical Officer and the Applicant’s physician prior to the preliminary
determination set out in the fairness letter. Neither the jurisprudence nor
fairness requires such an intervention. The question is not appropriate for
certification.
[31]
The
response to the second question is also evident from a review of the
jurisprudence and the procedure followed by a Medical Officer and Visa Officer
in these situations. The preliminary opinion of the Medical Officer is not
subject to judicial review. Indeed, the entire point of the fairness letter is
to allow an applicant to provide individualized information and rebuttal that
must then be taken into account by the Medical Officer. The question is not
appropriate for certification.
[32]
The
third question does not arise on the facts of this case. In his final opinion,
the Medical Officer responded to the submissions of Dr. Khodadad. The mere
existence of a contrary opinion does not require the Medical Officer to change
his opinion; medical experts may frequently disagree. Provided that the Medical
Officer addresses the rebutting submissions, considers the individualized
circumstances of the Applicant and his opinion is reasonable, the Court should
not intervene. The question is not appropriate for certification.
[33]
In
conclusion, this application for judicial review will be dismissed. No question
of general importance will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the
application for judicial review is dismissed; and
2.
no
question of general importance is certified.
“Judith
A. Snider”
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