Docket: IMM-1362-15
Citation: 2016 FC 588
Ottawa, Ontario, May 27, 2016
PRESENT: The Honourable Madam Justice
Heneghan
BETWEEN:
TENZIN YONTEN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
I.
INTRODUCTION
[1]
These Reasons are issued pursuant to the Judgment
issued on April 29, 2016.
[2]
Mr. Tenzin Yonten (the “Applicant”) seeks
judicial review pursuant to section 18.1 of the Federal Courts Act,
R.S.C. 1985, c. F-7 of a decision of a visa officer (the “Visa Officer”) in New
Delhi, India dated January 19, 2015 rejecting his sponsored application for
permanent residence on humanitarian grounds. The Officer determined that the
Applicant was inadmissible pursuant to paragraph 38(1)(a) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).
II.
BACKGROUND
[3]
In April 2004, the Applicant’s father applied to
sponsor him for permanent residence on humanitarian and compassionate grounds.
The application was approved in principle on February 7, 2012.
[4]
On January 17, 2012, the Applicant and his
sister underwent a routine medical examination, conducted by a physician at the
Max Medcentre, requested by the Canadian High Commission in New Delhi. Both the
Applicant and his sister’s Medical Reports note concerns that they suffered from
active tuberculosis.
[5]
The Applicant’s sister received correspondence
from the Canadian High Commission in February 2012 requesting that she undergo
further testing and treatment. She was later permitted to come to Canada.
[6]
The Applicant did not receive any requests for
further examinations or treatment at that time.
[7]
In March 2012, the Applicant was diagnosed with
tuberculosis by a physician at Meena Devi Jindal Medical Institute &
Research Centre. He began treatment which concluded in April 2013.
[8]
In August 2012, the Applicant received a phone
call from Max Medcentre requesting that he undergo further medical examination.
The Applicant attended the clinic on August 29, 2012 and August 30, 2012for
further tests. Those tests showed abnormalities and the Applicant underwent in
more testing, at the request of the Canadian High Commission, on November 6,
2012, November 20, 2012, February 7, 2013, and May 16, 2013.
[9]
During these medical appointments, the Applicant
did not inform physicians with the Max Medcentre that he was already being
treated for tuberculosis.
[10]
On June 11, 2013, the Applicant completed a
second routine medical examination at the request of the Canadian High
Commission.
[11]
On July 8, 2013, a medical officer provided his
opinion that the Applicant was inadmissible to Canada because he had a health
condition, that is active tuberculosis, which might reasonably be expected to
be a danger to public health pursuant to subsection 38(1) of the Act.
[12]
The Applicant received a procedural fairness letter
dated July 12, 2013 inviting him to make submissions or provide information
relating to the medical officer’s opinion. In his response to this letter, the
Applicant disclosed that he was receiving treatment for tuberculosis from the
Meena Devi Jindal Medical Institute & Research Centre.
[13]
The Applicant received a second procedural fairness
letter dated April 8, 2014, asking for more information about his medical
condition.
[14]
An email dated January 7, 2015 from the medical
officer to the Visa Officer, detailed the medical officer’s opinion that the
Applicant was inadmissible. This email refers to two phone calls made by the
medical unit in New Delhi: one to the Max Medcentre on November 12, 2014 and
one call made on November 14, 2014 to the Meena Devia Jindal Medical Institute
& Research Centre.
[15]
The email recorded that during the November 12,
2014 phone call, a physician at the Max Medcentre said that the Applicant had
not been treated for active tuberculosis, nor had the Max Medcentre confirmed
that he did not suffer from that disease.
[16]
The medical officer’s email contains a number of
observations about the Meena Devi Jindal Medical Institute & Research
Centre. The medical officer noted that the clinic is a “charity GP clinic” and
that “[n]ot infrequently, ventures like this are
created to “process black money” [an Indian expression for ‘launder
money’].
[17]
The Applicant was unaware of the January 7, 2015
email until he obtained his file through a request made pursuant to the Access
to Information Act, R.S.C. 1985, c. A-1.
[18]
The Applicant’s application was refused on
January 19, 2015.
III.
SUBMISSIONS
[19]
The Applicant argues that the Visa Officer
breached the duty of procedural fairness owed to him by failing to provide him
with an opportunity to respond to the medical officer’s email or the
information obtained in the November 12, 2014 and November 14, 2014 phone calls.
[20]
The Applicant submits the Visa Officer was
obliged to inform him of the negative medical officer’s opinion and allow him
to comment upon that opinion; see the decisions in Muliadi v. Canada
(Minister of Employment & Immigration), [1986] 2 F.C. 205 and Haghighi
v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407.
[21]
The Applicant also argues that the Visa
Officer’s decision is unreasonable since the determination that he has active
tuberculosis is outside the range of possible, acceptable outcomes based upon the
available medical evidence.
[22]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the duty of procedural fairness does not require the
disclosure of non-extrinsic evidence; see the decision in Asmelash v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1732. He argues that the
medical unit’s phone calls did not reveal anything not known to the Applicant.
He contends that it was expected that medical doctors might consult each other.
[23]
The Respondent also argues that the opinion about
the Meena Devi Jindal Medical Institute & Research Centre, that it was
possibly a money-laundering charity, did not affect the medical officer’s
assessment of the medical reports from that facility.
[24]
With respect to the Applicant’s argument that
the Visa Officer’s decision was unreasonable, the Respondent submits that it
was reasonable for the Visa Officer to rely upon the medical officer’s opinion.
IV.
DISCUSSION
[25]
Issues of procedural fairness are reviewable on
the standard of correctness; see the decision in Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 at paragraph 43.
[26]
The Visa Officer’s decision in a humanitarian and
compassionate application involves the exercise of discretion and is reviewable
on the standard of reasonableness; see the decision in Kanthasamy v. Canada
(Citizenship and Immigration), [2015] 3 S.C.R. 909 at paragraph 44. In
order to meet the reasonableness standard, the reasons offered must be
justifiable, transparent, intelligible and fall within a range of possible,
acceptable outcomes; see the decision in Dunsmuir v. New Brunswick,
[2008] 1 S.C.R. 190 at paragraph 47.
[27]
In my opinion, the non-disclosure of the January
7, 2015 email constitutes a breach of the duty of procedural fairness owed to
the Applicant. The email expressed concerns about the Applicant’s medical
diagnosis, treatment and the Meena Devi Jindal Medical Institute & Research
Centre. The Applicant was unaware of these concerns and was not given the
opportunity to refute them.
[28]
The duty of procedural fairness requires that
the Visa Officer provide the Applicant with an opportunity to comment upon the
negative medical officer’s opinion; see Muliadi, supra. In
failing to do so, the Visa Officer committed a reviewable error.
[29]
I am also satisfied that the Visa Officer’s
decision is unreasonable.
[30]
The Visa Officer relied upon the medical
officer’s opinion which considered irrelevant factors and did not consider the
totality of the medical evidence. The medical officer noted the possibility
that the Meena Devi Jindal Medical Institute & Research Centre was engaged
in money laundering, in concluding that the Applicant suffered from
tuberculosis.
[31]
In my opinion, the fact that “not infrequently”
clinics like the Meena Devi Jindal Medical Institute & Research Centre are
created to “process black money”, is irrelevant to the assessment of the admissibility
of the Applicant pursuant to section 38(1) of the Act.
[32]
In the result, this application for judicial
review is allowed. The decision is set aside and the matter remitted to a
different Immigration Officer for re-determination. There is no question for
certification arising.
“E. Heneghan”
FEDERAL
COURT
SOLICITORS
OF RECORD
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