Date: 20070413
Docket: IMM-2183-06
Citation: 2007 FC 384
BETWEEN:
LAKHVINDER
SINGH ROUNTA
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing of an application for judicial review of a decision
of a Visa Officer (the “Officer”) at the Canadian Consulate General in Hong
Kong, dated the 13th of February, 2006, wherein the Officer
determined the Applicant to be inadmissible to Canada as a permanent resident
by reason of his daughter, Guramanat Kaur Rounta, a proposed accompanying
family member on the Applicant’s application, being a person described in
paragraph 38(1)(c) of the Immigration and Refugee Protection Act (the “Act”).
[2]
The
relevant portions of subsection 38(1) of the Act read as follows:
|
38.(1) A
foreign national is inadmissible on health grounds if their health condition
|
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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(c) might reasonably be expected to cause excessive
demand on health or social services.
|
|
[3]
The
opening words of section 42 of the Act and paragraph (a) of that section
read as follows:
|
42. A
foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
|
42.
Emportent, sauf pour le résident permanent ou une personne protégée,
interdiction de territoire pour inadmissibilité familiale les faits suivants
:
|
|
(a) their accompanying family member or, in prescribed
circumstances, their non-accompanying family member is inadmissible;
|
a) l’interdiction de territoire frappant
tout membre de sa famille qui l’accompagne ou qui, dans les cas
réglementaires, ne l’accompagne pas;
|
|
…
|
…
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BACKGROUND
[4]
The
Applicant is a citizen of India. He is well educated, reasonably fluent
in English and operates his own business. He is married with two children, one
of whom is Guramanat Kaur Rounta. The Applicant has a number of relatives who
are resident in Canada and who support his application to come to Canada as a
permanent resident. The Applicant’s spouse has a sister who is a medical
doctor in Canada.
[5]
The
Applicant and his spouse were interviewed by the Officer who made the decision
under review. Her notes of that interview conclude:
Satisfied applicant
meets selection criteria. Pos Sel Dec [positive selection decision] entered.
Applicant to submit documetns [sic] showing proof of relationship to sister of
applicant’s spouse.
Meds [medical report
forms] handed over at interview.
[6]
In
an affidavit filed on this application for judicial review, the Officer
attests:
5. On April 7, 2005,
the medical results for Guramanat Kaur Rounta necessitated a request for a
further round of medical tests as described and requested by the Medical
Officer who reviewed the medical results. On April 28, 2005, the Medical
Section of Canadian High Commission in Beijing sent a
letter to the Canadian Consulate General in Hong Kong which then forwarded the
letter to the Applicant describing what was required to be done. A second
letter was sent to the Applicant on July 5, 2005. Finally, a reminder letter
was sent on September 8, 2005 and a copy of it was put on file.
6. The Hong Kong Immigration
Section of the Canadian Consulate General received a Medical Notification
letter by fax from the Beijing Medical Section…date-stamped September 13, 2005.
A copy of this Medical Notification letter was sent to the Applicant on October
6, 2005 along with a letter advising that the Applicant’s daughter, Guramanat
Kaur Rounta, had a medical condition which might render her, and consequently
the Applicant and other included dependants, medically inadmissible.
Consequently, the Applicant was provided Form…and given 60 days in which to
make any additional submissions with respect to the medical condition of his
daughter.
[Form
identifiers omitted]
[7]
The
sixty (60) days in which to make additional submissions regarding the
Applicant’s daughter’s medical condition was extended. Within the extended
period, the Applicant replied providing five (5) medical certificates from
various medical doctors in India, a report of the results of medical
testing, a letter describing Guramanat Kaur Rounta’s educational background and
performances and a request to reconsider the finding of medical
inadmissibility. All of the foregoing were reviewed by the medical doctor who
made the original assessment in respect of Guramanat Kaur Rounta. He confirmed
his original assessment. In the result, the decision under review issued.
THE MEDICAL NOTIFICATION
[8]
Guramanat
Kaur Rounta was assessed as having the following health condition: “Severe
restrictive lung disease”.
[9]
The
narrative in support is in the following terms:
This girl born on
September 20, 1995, has severe restrictive lung disease. She has abnormal
pulmonary function tests showing a decreased FEV1 at 37% and FVC at 36% of
predicted, with significantly impaired ventilatory function, confirming the
severity of her lung restrictive disease. Currently her pulmonary functional
status does not show evidence of respiratory failure, however, as reported by
the chest specialist, her prognosis is guarded and she is likely to progress
and deteriorate further toward respiratory failure.
Severe restrictive lung
disease is a condition which is expected to persist and to deteriorate,
especially if associated with secondary airway tract infection. She is
expected to require regular medical follow-up by a multidisciplinary team
(chest specialists, family physicians, respiratory therapists, nurses,)
specialized in treating patients with severe restrictive lung disease. She is
also expected to require specialized treatment like respiratory therapy, home
oxygen therapy and frequent hospitalizations at emergency rooms and/or tertiary
health care institutions within intensive care unit to treat her respiratory
complications.
Based upon my review of
the results of this medical examination and all the reports I have received
with respect to the applicant’s health condition, I conclude that she has a
health condition that might reasonably be expected to cause excessive demand on
health services. Specifically, this health condition might reasonably be
expected to require services, the costs of which would likely exceed the
average Canadian per capita costs over 5 years.
The Applicant is
therefore inadmissible under Section 38(1)(a) of the Immigration and Refugee
Protection Act.
Also has Severe congenital
scoliosis with no cage deformity and surgical vertebral fusion – history of
myelomeningocele.
[10]
As
earlier indicated, all of the foregoing was confirmed following receipt of the
Applicant’s response to the Medical Notification.
THE ISSUES
[11]
In
the Memorandum of Fact and Law filed on behalf of the Applicant, only one issue
is identified. That issue is the following:
Is the decision of the
visa officer unreasonable or patently unreasonable in that, she made several
factual mistakes and based her decision upon an erroneous finding of the fact
[sic] in a perverse and capricious manner, in violation of a principle of
fairness or natural justice?
At hearing, counsel for the Applicant
essentially ignored the foregoing issue and focussed entirely upon a review of
the medical certificates, apparently from well qualified medical specialists in
India, in response
to the Medical Notification provided to the Applicant with respect to Guramanat
Kaur Rounta. No submissions were made on behalf of the Applicant with respect
to the appropriate standard of review. Regrettably, no synthesis of the five
(5) medical certificates and the results of medical testing was put before the
Court on behalf of the Applicant and the medical certificates and test results,
taken individually, were only obliquely, at best, a commentary on the Medical
Notification. While counsel for the Applicant made much at hearing of the fact
that none of the Applicant’s medical certificates spoke of “lung disease”, or
more particularly, “Severe restrictive lung disease”, counsel left it to the
Court to conclude on the basis of this difference in terminology that the
authors of the Applicant’s medical certificates were in substantial disagreement
with the Medical Notification narrative and that their piece-meal reports
should be preferred.
ANALYSIS AND CONCLUSON
[12]
The
sole synthesis of the medical certificates and test results provided by the
Applicant in response to the Medical Notification that is before the Court is
contained in the affidavit of Michel Lapointe, a specialist in family medicine,
a member of la Corporation Professionnelle des Médecins du Québec and a
long-term employee of the Government of Canada in overseas medical immigration
services. In paragraph 2 of his Affidavit, Dr. Lapointe attests:
2. Je suis à l’emploi
du gouvernement fédéral depuis 1991, d’abord aux services médicaux de l’immigration
de la région Outre-Mer de Santé Canada, puis aux Services médicaux de l’immigration
suite au transfert de notre section au Ministère de la Citoyenneté et d
l’immigration Canada en 1993, et ensuite comme Directeur et Directeur régional
du Programme Outre-mer de la Santé. Une partie de mon travail consiste à faire
une évaluation médicale des candidats à l’immigration lorsqu’un candidat est
inadmissible médicalement en vertu du paragraphe 38(1) de La loi sur
l’immigration et la protection des réfugiés (‘LIPR’).
[13]
Dr.
Lapointe’s synthesis of the Applicant’s medical certificates and test results
is in the following terms:
10. J’au lu et considéré
tous les documents fournis par le Demandeur. Cependant, mon opinion que la
fille était médicalement inadmissible n’a pas changé parce que les divers
certificats médicaux mentionnés ci-dessus confirment la scoliose congénitale
avec les difformités secondaires de la cage thoracique. De plus, les analyses
de fonction respiratoire effectuées le 9 décembre 2005 démontrent une FVC
diminuée à 37.8% de la valeur prédite et une FEV1 aussi diminuée à 41.1% de la
valeur prédite. Ces résultats répétés de la fonction respiratoire sont
consistants avec ceux pris en considération lors de l’inadmissibilité médicale
et démontrent une atteinte sévère de la fonction respiratoire.
11. Donc, même si les
médecins mentionnés ci-dessus indiquent que la fille n’aura pas besoin d’une
chirurgie dans le proche avenir, une personne avec une maladie pulmonaire
obstructive sévère, aura besoin d’un suivi médical par une équipe
multidisciplinaire composée entre autres, de pneumologue, de médecin de
famille, d’infirmier, d’inhalothérapeute. Elle aura besoin aussi de soins en
inhalothérapie, d’hospitalisations aux urgences et aux unités de soins
intensifs lors des épisodes de complications et d’exacerbation ainsi que des
traitements d’oxygénothérapie.
12. Par rapport aux
opinions que la fille n’a pas de maladie pulmonaire et qu’elle est
neurologiquement stable, je répondrais que les tests de fonction respiratoire
répétés le 9 décembre 2005 confirment de nouveau la maladie pulmonaire
obstructive sévère dont souffre la fille qui est secondaire à sa scoliose
congénitale sévère avec la déformation thoracique qui en résulte. Avec la
croissance, on peut s’attendre à une détérioration des problèmes médicaux dont
souffre la fille.
[14]
Dr.
Lapointe, after a brief cost analysis of the services he opines the Applicant’s
daughter is likely to require, concludes by affirming the conclusion of his
Medical Notification that Guramanat Kaur Rounta is inadmissible under paragraph
38(1)(a) of the Act. With great respect to counsel for the Applicant,
on the material before the Court and on the basis of his submissions at
hearing, the Court is left with no alternative but to adopt Dr. Lapointe’s
synthesis of the Applicant’s medical certificates and test results.
[15]
Against
a standard of review of correctness,
applied against the highly subjective test in paragraph 38(1)(c) of the Act
“…might reasonably be expected to cause excessive demand on health or social
services”, it was entirely open to the Visa Officer to reach the decision here
under review based upon the medical analysis in the underlying Medical
Notification and the confirmation of that analysis by Dr. Lapointe after his
review of the piece-meal response to that Notification submitted on behalf of
the Applicant.
[16]
In
the result, this application for judicial review will be dismissed.
CERTIFICATION OF A
QUESTION
[17]
At
the close of the hearing of this application for judicial review, counsel were
advised that the application would be dismissed and were given a brief oral
explanation for the outcome. Counsel for the Applicant, when consulted,
indicated that he wished to submit a question for certification and that he was
not in a position to formulate his question at that time. The Court agreed to
provide time to formulate a question. Counsel for the Applicant will have
until the close of business at the Court on the day after the day on which
these reasons are released to counsel to file with the Court and provide to
counsel for the Respondent any question that he wishes to recommend for
certification. Thereafter, counsel for the Respondent will have two (2)
working days to file with the Court and provide to counsel for the Applicant
any responding submissions. Thereafter, counsel for the Applicant will have
one (1) working day to file with the Court and provide to counsel for the
Respondent any reply submissions. Only once submissions on certification of a
question have closed and the Court has had an opportunity to consider them,
will an Order issue herein.
“Frederick
E. Gibson”
Ottawa, Ontario
April
13, 2007
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