Docket: IMM-3764-11
Citation: 2012 FC 507
Ottawa, Ontario, May 2, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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NESTOR DIAZ OVALLE
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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
I. Overview
[1]
Mr.
Nestor Diaz Ovalle, a citizen of Panama, applied for permanent
residence in Canada as a skilled
worker. Mr. Ovalle is HIV positive.
[2]
A
visa officer at the Canadian Embassy in Guatemala concluded that Mr. Ovalle was
inadmissible to Canada on medical grounds; that is, he might cause
excessive demands on Canadian health services. Mr. Ovalle argues that the
officer failed to consider his detailed plan for managing his medical expenses,
according to which he would receive medication at no cost from a charitable
organization. In any case, he also had health coverage with his prospective
Canadian employer that would cover the cost of medication, if necessary.
[3]
The
officer’s decision, according to Mr. Ovalle, was unreasonable. I agree. The
officer did not appear to give any consideration to Mr. Ovalle’s submissions
relating to his medical expenses. Accordingly, I must allow this application
for judicial review and order another officer to reconsider Mr. Ovalle’s
application for permanent residence.
[4]
The
sole issue is whether the officer’s decision was unreasonable.
II. The Officer’s Decision
[5]
The
officer relied on the opinion of a medical doctor who expressed a concern that Mr.
Ovalle would need ongoing treatment with anti-retroviral drugs and close
monitoring. The officer sought Mr. Ovalle’s input on that issue and gave him a
chance to submit a plan to offset the demand that he might impose on Canadian
services.
[6]
In
response, Mr. Ovalle provided the following information:
• His
doctor stated that he had been given anti-retroviral treatment since 2001 and
had responded well. If this treatment continued, he would likely enjoy good
health for the next 5 to 10 years.
• A
non-profit organization called “Aid for AIDS International” had been providing
medication to Mr. Ovalle at no cost since April 2009. It was willing to
continue to do so permanently, even if he moved to Canada.
• Mr.
Ovalle’s prospective Canadian employer stated that he would be covered under
the firm’s health care plan for at least $1500 per year.
• Mr.
Ovalle agreed to assume responsibility for the social services he would require
in Canada, and would
not look to the federal or provincial government to fund those services.
• The
estimated cost of Mr. Ovalle’s medication was about $1500 per month, or $18,000
per year.
• The
Maple Leaf Medical Clinic in Toronto concluded that Mr.
Ovalle should have a life expectancy similar to someone who is HIV negative. He
would require 2 or 3 clinic visits a year, but his demands on public health
would be minimal.
[7]
The
officer forwarded this information to a medical officer who noted that Mr.
Ovalle’s diagnosis and prognosis had not changed. The officer relied on that
opinion to conclude that Mr. Ovalle was inadmissible to Canada on medical
grounds (Immigration and Refugee Protection Act, SC 2001, c 27, s 38(1)(c)
– see Annex).
III. Was the Officer’s Decision
Unreasonable?
[8]
The
Minister argues that the officer’s decision was reasonable, given that it was
based on the evidence before him. That evidence did not displace the officer’s
concern about the magnitude of Canadian health resources that Mr. Ovalle would
require.
[9]
I
disagree. While the officer had detailed information before him about the
medication Mr. Ovalle would require, its cost, and his ability to meet that
cost, the officer merely reiterated the medical officer’s opinion that Mr.
Ovalle’s diagnosis and prognosis had not changed. But neither the prognosis nor
the diagnosis was the issue. There was no dispute about that. The issue was
whether Mr. Ovalle would impose an excessive demand on Canadian resources. The
officer did not address that issue in his reasons. It is not possible,
therefore, to understand the basis for his conclusion that Mr. Ovalle’s plan
was not satisfactory.
[10]
Accordingly,
the officer’s decision was unreasonable.
IV. Conclusion and Disposition
[11]
The
officer did not explain why, given his detailed plan to cover the cost of his
medication, Mr. Ovalle remained medically inadmissible to Canada. Therefore,
his conclusion was unreasonable. I must, therefore, allow this application for
judicial review and order another officer to reconsider Mr. Ovalle’s
application. Neither party proposed a question of general importance for me to
certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back for
reconsideration by another officer.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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Immigration
and Refugee Protection Act, SC 2001, c 27, s 38(1)(c)
Health
grounds
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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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Motifs
sanitaires
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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