Date: 20090825
Docket: IMM-5704-08
Citation: 2009 FC 842
Ottawa,
Ontario, August 25, 2009
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
TETYANA
BARNASH
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”). The Applicant
asks this Court to review a decision from the Immigration Appeal Division (the
“IAD”) of the Immigration Review Board under section 67(1)(a) and (c) of IRPA.
[2]
Tetyana
Barnash (“the Applicant”) sponsored an application for permanent resident visas
on behalf of her parents, Klara Urman (her mother) and Illya Urman (her father).
That application was rejected September 20, 2006 due to the health care
restrictions arising from the Urmans’ diagnoses of heart disease as per section
38(1)(c) of IRPA. The Applicant appealed and the IAD dismissed her appeal
on December 16, 2008 for similar reasons. Ms. Barnash now applies for
judicial review of the IAD decision.
Facts
[3]
The
Applicant comes from a close knit family in the Ukraine. Tetyana Barnash,
daughter of Klara and Ilya Urman lived under the same roof as her parents for
most of her life. When Tetyana married, her husband Vitaly moved in. They had
a son, Alex, who also stayed in the home for the first part of his childhood.
In 2000, the Applicant, Vitaly and Alex, left for Canada. Olena
Urman, Tetyana’s sister, followed in 2003.
[4]
In
2003, Ms. Barnash sponsored her parents’ application to become permanent
residents of Canada. She wishes
to reunify her family and provide her son with the benefit of care and
attention from his grandparents, including the desire he become familiar with
his heritage.
[5]
Ms.
Barnash has successfully pursued training as a practitioner of Chinese Medicine
and Acupuncture. Her husband is employed and earns a good salary. Together
they purchased a three bedroom house in Vaughn, Ontario which they
occupy with Olena Urman. They say it is well equipped and it was chosen in
anticipation of housing the elder Urmans. In the meantime, the family keeps in
touch regularly via telephone, the internet and by letter.
[6]
Klara
and Illya Urman’s application for permanent resident status was refused on
medical grounds: namely heart conditions. Both Klara and Illya Urman are
diagnosed with coronary atherosclerosis.
[7]
Three
doctors have considered the older couple’s health, Doctor Marilyn Cooper who
was at the time the Regional Medical Officer at the Canadian Embassy in Vienna,
Doctor Ted Axler who conducted Immigration Medical Assessments for Canada and is a
family practitioner in Toronto and Doctor Irina Knyazkova, a Cardiologist and
Professor at the Kharkiv State Medical University in the Ukraine.
[8]
Klara
Urman is diagnosed with ischemic heart disease, stable angina functional class
II, hypertension stage II, heart failure of class 2 to 3 out of 4. She has
been hospitalized for this condition, twice in 2005.
[9]
Illya
Urman is diagnosed with ischemic heart disease, stable angina functional class
II, cardiosclerosis due to post infarction, hypertension stage III, heart
failure functional class II.
[10]
The
Medical Officer, Doctor Cooper, concluded the Urmans’ conditions would
deteriorate and result in using expensive health services that are also in high
demand.
[11]
Doctor
Axler disputed this finding. He contended family support should have been
factored into the probability of a deterioration of the elder Urman’s health. More
support, he says, would result in fewer problems. He adds a change in
lifestyle and diet resulting from a move to Canada would also
favour the Urmans’ chances of avoiding serious health complications. Finally,
he argues the Urmans are likely to benefit from an inexpensive course of
pharmaceutical treatment to control their blood pressure.
[12]
Doctor
Knyazkova suggested the patients will remain stable for the next 5-6 years if
they follow their courses of treatment.
Decision Under Review
[13]
Both
the Immigration and Refugee Board and the Immigration Appeal Division found the
medical evidence concerning the elder Urmans indicating the demand for services
connected to their ailments triggered the inadmissibility requirements of section
38(1)(c) of IRPA.
[14]
The
IAD considered reasons for granting special relief from the medical
inadmissibility finding pursuant to Section 67(1)(c) of IRPA. It
recited the family’s history, the younger generation’s progress in Canada and the
living conditions of the elder Urmans. It reiterated Canada’s stated
goal of family reunification, but concluded at paragraph 36:
“The panel weighed the legislative goal
of family reunification against the statutory bar to the admission of the
applicant and her husband on medical grounds. The extent of the statutory bar
is high.”
[15]
The
IAD also briefly considered the best interest of the child.
[16]
The
IAD dismissed the appeal concluding the Appellant had not established
sufficient humanitarian and compassionate considerations to warrant special
relief pursuant to Section 67(1)(c) of IRPA.
Issues
[17]
The
issues arising on this appeal are:
1. Was the IAD’s
conclusion concerning the inadmissibility requirements of 38(1)(c) of IRPA,
reasonable?
2. Did the IAD
err in its assessment of humanitarian and compassionate considerations to grant
special relief pursuant to section 67(1)(c) of IRPA?
3. Did the IAD
fail to observe procedural fairness by failing to give reasons for denying the
Applicant’s submissions on judicial review of humanitarian and compassionate
grounds?
Standard of Review
[18]
The
consequence of the elder Urman’s heart disease is a finding of fact by the
Medical Officer. This finding was relied upon by the Immigration Officer and
the IAD.
[19]
Justice
Dubé considered the standard of review in such cases in Gao v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 114:
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].
[20]
Given the specialized nature of a medical opinion, reasonableness
is the appropriate standard of review for this part of the IAD decision.
[21]
On
the issue of special relief on humanitarian ground, it is well settled in Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817,and supported in Dunsmuir
v. New
Brunswick,
[2008] 1 S.C.R. 190 that the proper standard of review in humanitarian
and compassionate considerations is reasonableness. For a breach of procedural
fairness, the standard of review is correctness.
Analysis
Was
the Panel’s conclusion concerning inadmissibility requirements of 38(1)(c) of
IRPA reasonable?
[22]
The
Applicant argues the IAD overlooked or ignored certain facts about the health
of the elder Urmans. Specifically, the Applicant argues the IAD overlooked medical
evidence that Klara Urman’s condition over the last few years has been stable.
The letter of Doctor Knyazkova provided a prognosis that Klara Urman does not
require surgical intervention or intensive therapy and her condition was stable
during the past three years.
[23]
The
Applicant submits that Klara Urman’s stable condition rebuts the excessive
demands limb of the medical inadmissibility test.
[24]
The
Medical Officer’s opinion need not show the elder Urmans’ medical evidence conclusively
shows that they would make excessive demands on the health system. Section
38(1)(c) of IRPA provides:
38. (1) Health Grounds – A foreign
national is inadmissible on health grounds if their health condition
(c) might reasonably
be expected to cause excessive demand on health of social services.
[25]
Excessive
demand is defined in section 1(1) of the IRPA Regulations as:
(a) demand on health services or
social services for which the anticipated costs would likely exceed average
Canadian per capita health services and social service 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 the existing waiting
lists and would increase the rate of mortality and morbidity in Canada as a
result of the denial or delay in the provision of those services to Canadian
citizens or permanent residents.
[26]
In Sirbu v. Canada (Minister of Citizenship and Immigration), 2006 FC 449, Justice Teitelbaum
considered the reviewable elements of a medical opinion. He took guidance from
Masood v. Canada (Minister of Citizenship and Immigration), 2003 FC 1411
which refers to Fei v. Canada (Minister of Citizenship and Immigration),
[1998] 1 F.C. 274 “…where the medical officer’s report includes a patently
unreasonable error of fact or was generated in a manner contrary to principles
of natural justice, then the visa officer’s reliance on that report constitutes
an error of law.”
[27]
Doctor
Cooper had reviewed the new medical information provided after fairness letters
were sent giving the elder Urmans the opportunity to provide further medical
information. The Medical Officer did not ignore the new evidence nor did she
make any unreasonable error of fact since the medical opinions of the three
doctors all confirm the same underlying diagnosis.
[28]
Doctor
Cooper considered significant the likely need for Klara Urman, based on her
current state of health, for repeated emergency room use and hospital
admissions for angina and congestive heart failure. This consideration was not
addressed in Doctor Knyazkova’s medical prognosis stating that Klara Urman
would not require surgical intervention or intensive therapy. Doctor Cooper
reasonably concluded Klara Urman would likely place excessive demands on the Canadian
health care system.
[29]
On
appeal, the IAD took note of Doctor Knyazkowa’s medical report and of her
medical prognosis including her stable condition which was compensated and well
controlled by remedies.
[30]
The
IAD accepted Doctor Cooper’s assessment. She had reviewed new information, and
maintained her opinion that the elder Urmans would each likely cause excessive
demand on health services as contemplated by section 38(1)(c) of IRPA. The
IAD made a straightforward and reasonable conclusion drawn from the specialized
medical opinions available. The Medical Officer had not ignored the
Applicant’s medical evidence, neither did the IAD.
[31]
The
Applicant does not succeed on this ground.
Did the Panel err in its assessment of
humanitarian and compassionate considerations to grant special relief pursuant
to section 67 (1)(c) of IRPA?
[32]
Ms.
Barnash also submits that the IAD erred by failing to consider whether undue,
undeserved or disproportionate hardship would result to the Applicant and her
close family members.
[33]
Finally,
Ms. Barnash submits the IAD breached procedural fairness by failing to give
reasons for rejecting the Applicant’s submissions on humanitarian and
compassionate grounds.
[34]
The
IAD carefully listed all of the considerations submitted by the Applicant concerning
humanitarian and compassionate grounds for special relief under section 67(1)
(c) of IRPA. It stated:
The panel weighed the legislative goal of
family reunification against the statutory bar to admission of the applicant
and her husband on medical grounds. The extent of the statutory bar is high.
Taking into consideration the best
interests of a child directly affected by the decision, the applicant has not
established sufficient humanitarian and compassionate considerations to warrant
the granting of special relief. The appeal is therefore dismissed.
[35]
While
its reasoning is scant, it is clear the IAD weighed the merits of family
reunification against what it considered a high bar to admission when medical
grounds against admission are established. In that weighing, the humanitarian
and compassionate considerations, raised in respect of a request for
discretionary relief, did not overcome an express statutory medical bar. The
IAD reasoning, albeit brief, is both reasonable and sufficient to explain why
it denied the elder Urmans special relief under section 67(1) (c).
[36]
Finally,
it is clear on the evidence the family is attached and affectionate. While the
IAD did not decide for special relief in the application for permanent
residence, it did not question the familial considerations advanced in the
appeal. It also would appear the Applicant and other adult family members
personally attended the judicial review hearing.
[37]
I
must note that attached to the letter to Ms. Barnash advising her of her right
to appeal to the IAD are copies of letters from the Visa Officer to the elder
Urmans informing them of the decision refusing their application for permanent
resident visas to Canada on health grounds. These letters expressly
caution them about applying for a visitor’s visa. It seems to me such caution
is premature since different considerations arise on an application for a
visitor’s visa.
[38]
I referred above to the
decision of Mr. Justice Teitelbaum in Sirbu v. Canada (Minister of Citizenship and Immigration) supra which considers a very similar set
of facts. Justice Teitelbaum stated in his decision: “I also add that the
respondent should do all in its power to grant the applicant’s parents a
visitor’s visa to visit the applicant and the grandchildren.”
[39]
I would make a similar
recommendation in this case.
Conclusion
[40]
The
application for judicial review is denied.
JUDGMENT
THIS COURT ORDERS that:
1. The application for
judicial review is dismissed.
2. No general question
of importance is certified.
“Leonard
S. Mandamin”
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