Date: 20110117
Docket: IMM-2114-10
Citation: 2011 FC 47
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Québec, January 17, 2011
PRESENT: The Honourable
Mr. Justice Martineau
BETWEEN:
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SONER SÖKMEN
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Applicant
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and
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MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
The
applicant is challenging the legality of a decision of an immigration officer
at the Canadian Embassy in Ankara, Turkey, rejecting the applicant’s
application for permanent residence and concluding that he and his accompanying
family members are inadmissible under paragraph 38(1)(c) and section 42
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act).
[2]
Further
to a medical narrative prepared by Dr. Hindle, the medical officer for
Citizenship and Immigration Canada (the department), the immigration officer
determined that the applicant’s son, Bariş, has a health condition that
might reasonably be expected to cause excessive demand on Canadian health or
social services.
[3]
On
this application for judicial review, the parties acknowledge that the
appropriate standard of review of the immigration officer’s decision is
reasonableness. The jurisprudence establishes that an immigration officer must
consider the medical officer’s assessment in light of all the relevant evidence
(medical and non-medical). Moreover, the medical officer must conduct an individualized
assessment of the person to determine excessive demand; if it is alleged that
the medical officer failed to do so, the standard of review is correctness.
[4]
For
the following reasons, the application for judicial review must be allowed.
[5]
In
this case, the applicant, a Turkish citizen, submitted an application for
permanent residence in the economic category as an investor. The applicant and
his family were selected by Quebec, but they still must not be inadmissible to Canada.
[6]
Bariş,
born on February 15, 1992, presents a tetralogy of Fallot, a congenital
heart disease. He has been treated in France for over fourteen years
by Dr. Emre Belli, an eminent cardiologist who practises at the Marie
Lannelongue hospital in Paris. Fortunately, the Sökmen family has the
financial resources to support Bariş because his condition has required a
number of interventions in the past. Despite their plan to move to Canada, the
Sökmen family still prefers today that Bariş be treated and followed in France by
Dr. Belli.
[7]
However,
Bariş’ condition is stable and controlled, which is confirmed by his
treating physician, Dr. Belli. In fact, the new pulmonary prosthesis, which was
implanted percutaneously in London in 2008, allows Bariş to enjoy the
same pace of life as all boys his age. He goes to school full-time, performs
daily tasks and plays various sports such as tennis.
[8]
Bariş
takes inexpensive medication, one 20 mg enapril tablet and one aspirin per day.
He does not need the assistance of social services. That being said, the
applicant has personally committed, if necessary, to pay all the costs of
health and social services that the family’s arrival in Canada may entail.
[9]
In
the impugned decision dated February 3, 2010, the immigration officer
rejected the applicant’s application for permanent residence on the ground that
Bariş’ health condition might “reasonably be expected to cause excessive
demand on health or social services”. This final decision was in the form of a
generic letter. It did not specifically mention the medical reports in the file
or the representations submitted by the applicant.
[10]
To
understand the immigration officer’s refusal to issue a permanent residence
visa, reference must first be made to the fairness letter dated June 4,
2009, which was sent to the applicant with Dr. Hindle’s medical narrative.
We point out that Dr. Hindle did not examine Bariş and that his
opinion was supposedly based on the medical file, including the cardiologist’s
opinions, which he was able to consult. What follows is a brief summary of the
medical evidence in the record.
[11]
First,
Bariş was examined in Turkey by Dr. Durmus Sevinç on behalf
of the Canadian Embassy in Ankara. Dr. Sevinç prepared a detailed medical
report dated September 19, 2008. Regarding the treatment for Bariş’
tetralogy of Fallot, Dr. Sevinç referred to the surgeries in 1993, 1995
and 1997 as well as the valve replacement in 2003 and 2008. Dr. Sevinç
also noted the medications that Bariş takes and the results of the
examinations he completed (vision, blood pressure, respiration).
[12]
When
he finished examining Bariş, Dr. Sevinç checked box B of the department’s
medical form:
B. Findings that require periodic
specialist following care but which normally can be handled without
resorting to repeated hospitalizations or the provision of social services
(e.g. totally asymptomatic congenital or rheumatic heart disease where the
requirement for hospitalization and/or surgical intervention appears unlikely
over the next ten years, well controlled rheumatoid arthritis with a minimal
functional impact, etc.). Applicant should be able to function independently
and be self-sufficient (no anticipated need for domicialary or nursing …. care
in the future). No evidence of mental retardation or developmental delay. NO
ACTIVE TB OR DANGEROUS BEHAVIOUR. At most, only minor hospitalizations.
[13]
Dr.
Sevinç’s report was then sent from the Canadian Embassy in Ankara to the
Embassy in Paris. In an
internal memorandum dated October 29, 2008, a medical officer requested
that the opinion of the specialist who was treating Bariş for his current
medical condition, in this case his cardiologist, be added to the file. The
officer wanted to obtain his opinion on the probability of further surgery or
non-invasive procedures within the next five years.
[14]
In
this case, Dr. Belli wrote two detailed reports on Bariş’ medical
condition dated December 24, 2008, and March 31, 2009.
[15]
In
his first report, Dr. Belli explained that the surgical interventions
allow Bariş to have a normal quality of life and that his heart disease is
well controlled. He concluded that it will [translation]
“likely be necessary to intervene on his pulmonary bioprosthesis in several
years but probably not within the next five years. This intervention will
preferably be through interventional catheterization without surgical
revision.”
[16]
In
the second report, Dr. Belli added to the first report, saying that it was
difficult to estimate the lifespan of the prosthetic valve that Bariş has
since it is a relatively recent valve but that [translation]
“it is very probable that, as a result of favourable rheologic properties, the
valve will degenerate more slowly.” Further on, he said that it was probably
possible that the valve could be replaced again without surgical intervention.
[17]
Although
Bariş’ tetralogy of Fallot was repaired in 1995 and it will likely not be
necessary to intervene on his pulmonary bioprothesis for several years and
probably not within the next five years (see Dr. Belli’s report), the
department’s medical officer nonetheless concluded that his health condition
might reasonably be expected to cause excessive demand on Canadian health or
social services.
[18]
Dr. Hindle’s
analysis is succinct; the complete text reads as follows:
Diagnosis: Congenital heart disease 759
Narrative:
This NV5 application born in 1992 in Turkey has Tetralogy of Fallot, a
severe congenital heart disease, with transposition of the great vessels.
He has already required multiple cardiac
surgeries including 1993, 95, 97 and valve replacements in 2003 and 2008.
According to the specialist’s report of Feb. 12, 2008 his peak oxygen uptake
was less than 35% of predicted. There was significant evidence of impaired
mechanical work efficiency and oxygen pulse of the heart. His last cardiac
operation was precutaneous pulmonary valve implantation with relief of
obstruction and abolishment of pulmonary regurgitatin. However, “the
biventricular function is significantly impaired and cardiopulmonary exercise
testing before and after the procedure showed severely impaired exercise
capacity.” According to the most recent cardiologist report dated 13/03/2009,
he will require further open heart surgery.
This would entail another cardiac
hospital admission and procedure. This procedure will require the services of
specialized hospital facilities and a highly skilled team of doctors, nurses
and support staff. These medical facilities and personnel are expensive and in
high demand.
All of these findings are indicative of
serious heart disease with significant alteration in the overall structure and
functioning of the heart. The prognosis for this medical condition is for
continuation and deterioration. Ongoing specialist’s attention, associated
tests; further hospitalizations and surgical interventions are indicated. These
services are costly and will also displace those in Canada already awaiting these services.
[19]
We
will come back to certain gratuitous statements made by Dr. Hindle a
little later. For the moment, we note that in the fairness letter dated
June 4, 2009, the immigration officer repeated Dr. Hindle’s analysis.
At page 2, speaking about Bariş’ congenital disease, the immigration
officer concluded:
Based upon my review of the results of
this medical examination and all the reports I have received with respect to
his health condition, I conclude that he has a health condition that might
reasonably be expected to cause excessive demand on health services. Specifically,
this medical condition might reasonably be expected to require health services,
the costs of which would likely exceed the average Canadian per capita costs over
the next five to ten years and displace those in Canada awaiting these services. He is therefore deemed
inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection
Act.
(Emphasis
added.)
[20]
What
is striking initially is that the immigration officer’s above‑noted
conclusion does not take into consideration the medical officer’s medical
narrative.
[21]
It
is true that in the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) “excessive demand” includes “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.” (Emphasis added.)
[22]
However,
Dr. Hindle’s medical narrative does not contain any indication that “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.”
[23]
Moreover,
if we review the reasonableness of the immigration officer’s general conclusion
in the fairness letter in light of “Operational Bulletin 063-B – Assessing
Excessive Demand on Social Services”, the period considered should be stated in
the medical officer’s opinion to the visa officer, which is not the case here.
At the very most, Dr. Hindle’s medical narrative deals with the tetralogy
of Fallot generically.
[24]
Nor
did Dr. Hindle review the applicant’s proposed plan, taking into
consideration the availability, quality, feasibility and financing of the
proposed plan, apart from saying that Bariş will have to undergo open‑heart
surgery, which will require medical resources that are in great demand and are
also very costly for the Canadian health system.
[25]
In
his report, Dr. Hindle referred to the multiple surgeries that Bariş
underwent in 1993, 1995 and 1997. He also provided some information on his
medical condition in February 2008, which was obtained from his medical file.
However, considering the evidence before him, Dr. Hindle’s analysis is
biased and incomplete. Dr. Hindle goes so far as to state that the
prognosis is negative and that Bariş’ condition will deteriorate, which directly
contradicts the medical evidence in the record.
[26]
Dr. Belli
never speaks of open‑heart surgery. His prognosis for Bariş’
condition is favourable. Dr. Belli has been treating Bariş virtually
since he was born: there is no one in the world who knows Bariş’ medical
reality better than he does. He is a renowned cardiologist. That being said,
there is no evidence in the record to suggest that Dr. Hindle specializes
in heart and lung disease any more than the medical officer working at the
Canadian Embassy in Paris, who seems to have also been involved or
consulted.
[27]
Even
more serious is the fact that Dr. Hindle quotes Dr. Belli’s report of
March 31, 2009, as stating generally that Bariş will require open‑heart
surgery. In reality, as stated above, Dr. Belli’s second report indicates
that the valve replacement could perhaps be done without surgical intervention,
and the first report states that the surgery would take place “in several
years, but probably not within the next five years.”
[28]
Given
that the valve is new, Dr. Belli did not make any promises, but he
certainly did not say that open‑heart surgery would be required in the
next five years. The criterion to consider is not whether Bariş would
require the surgery as such, as Dr. Hindle’s report implies, but whether
it would take place in the next five to ten years.
[29]
If
the medical officer did not agree with Dr. Belli’s assessment, he should
have explained why in his report, which he failed to do in this case.
[30]
In
the CAIPS notes in the applicant’s file, the immigration officer wrote on
February 3, 2010, that the additional information provided by the
applicant after he received the fairness letter did not change the initial
determination that Bariş is inadmissible under paragraph 38(1)(c)
of the Act:
THE DMP (PARIS) RESPONDED ON 27 JANUARY
TO THE PROCEDURAL FAIRNESS;
HIS DECLARATION IS AS FOLLOWS;
“AFTER READING THE MEDICAL FILE AND ALL THE DOCUMENTS
SUBMITTED, THE ADDITIONAL INFORMATION DOES NOT MODIFY THE MEDICAL
INADMISSIBLITY OF THIS CLIENT. ALTHOUGH HE IS COPING WELL THE [sic]
MOMENT, HIS HISTORY OF MULTIPLE OPERATIONS AND THE CARDIAC SURGEON S OPINION THAT
HE WILL AGAIN REQUIRE OPEN HEART SURGERY IN THE RELATIVE NEAR FUTURE,
REQUIRES THAT THE M5 ASSESSMENT REMAINS. HE IS THEREFORE DEEMED INADMISSIBLE
UNDER SECTION 38(1)(c) OF IPRA.
ON BASIS OF THIS INFORMATION; I AM
SATISFIED THAT THE APPLICANT S DEPENDANT SON IS INADMISSIBLE UNDER SECTION
38(1)(c) of the IRPA.
APPLICANT IS INADMISSIBLE ON MEDICALS [sic]
GROUNDS. THEREFORE REFUSED ON 38(1)(C) OF THE ACT.
LETETR [sic] TO BE PREPARED.
(Emphasis
added.)
[31]
As
can be seen, it appears that on February 3, 2010, the immigration officer
returned to the period taken into consideration in terms of anticipated costs:
it was no longer a question of a period beyond the next five years, the
immigration officer referred to the fact that Bariş will undergo open‑heart
surgery within the next five years.
[32]
However,
given Dr. Belli’s two reports, Dr. Hindle’s conclusion that “the
prognosis for this medical condition is for continuation and deterioration.
Ongoing specialist’s attention, associated tests, further hospitalizations and
surgical interventions are indicated” is clearly a generic conclusion about the
tetralogy of Fallot, not Bariş’ particular situation.
[33]
But
there is another reason to set aside the immigration officer’s decision. Beyond
the medical aspect, the immigration officer’s general conclusion is not
supported by the evidence in the record and is speculative.
[34]
In
terms of finances, the impugned decision does not contain any analysis of the
applicant’s proposed plan. It must be noted, under paragraph 38(1)(c) of
the Act, that it is only where a medical condition might reasonably be expected
to cause excessive demand that the person is inadmissible. This indicates that
some demand is acceptable; a full analysis is therefore required to determine
whether the demand is “excessive”.
[35]
In
Canada (Minister of Citizenship and Immigration) v. Colaco, 2007 FCA
282, the Federal Court of Appeal found that, in assessing both the risk of
demand and the extent of that demand, the foreign national’s ability and
willingness to pay for the services are relevant factors to take into
consideration. These factors are not conclusive or determinative in making the
assessment, but they cannot be ignored because they may influence the level of
risk and demand for social services support.
[36]
In
this case, the applicant provided the immigration officer with evidence of the
Sökmen family’s financial resources. The applicant also submitted a statement
of ability and willingness, in which the applicant stated that he intended to
continue to have Bariş treated by Dr. Belli in Paris, that he would
assume full responsibility for Bariş’ care in Canada and that the federal
and provincial governments would not be responsible in any way for the costs
associated with it.
[37]
After
reviewing the impugned decision and the CAIPS notes in the record, the Court
cannot find that the immigration officer properly considered these factors,
which constitutes reviewable error.
[38]
For
all these reasons, the immigration officer’s decision is unreasonable, and the
Court will grant judicial review. Counsel for the parties agree that no
question of general importance is raised in this case. Also, no question will
be certified.
JUDGMENT
THE COURT
ADJUDGES AND RULES AS FOLLOWS:
1.
The
application for judicial review is allowed;
2. The decision
of February 3, 2010, is set aside, and the application for permanent
residence by the applicant and his accompanying family members is returned for
reconsideration by another immigration officer at the Canadian Embassy in
Ankara, Turkey; and
3. No question
is certified.
“Luc
Martineau”
Certified true
translation
Mary Jo Egan, LLB
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