Date: 20110201
Docket: A-115-10
Citation: 2011 FCA 35
CORAM: DAWSON J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
VITHAL SAPRU; AMITA
SAPRU
RADIKA SAPRU; RISHI
SAPRU
Appellants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] This appeal raises important questions
concerning the responsibility of a medical officer when considering medical
admissibility under the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (“Act”) and the Immigration and Refugee Protection Regulations,
SOR/2002-227 (“Regulations”). Specifically, in considering an applicant’s
ability and intent to mitigate excessive demand on social services, what inquiries
must a medical officer make and when? Thereafter, must a medical officer
provide an immigration officer with adequate reasons for the medical officer’s
opinion that a foreign national’s health condition might reasonably be expected
to cause excessive demand on social services in Canada?
[2] The
questions arise on an appeal from a decision of the Federal Court: 2010 FC
240. The Judge of the Federal Court certified as serious questions of general
importance the following two questions:
a. When
considering whether a person is inadmissible on health grounds pursuant to
paragraph 38(1)(c) of the Act, is a Medical Officer obligated to
actively seek information about the applicants' ability and intent to mitigate
excessive demand on social services from the outset of the inquiry, or is it
sufficient for the Medical Officer to provide a Fairness Letter and rely on the
applicants' response to that letter?
b. Is
a Medical Officer under a duty to provide adequate reasons for finding that a
person is inadmissible on health grounds pursuant to paragraph 38(1)(c)
of the Act, which is independent from the Visa Officer's duty to provide
reasons and which is therefore not satisfied by the Visa Officer providing
reasons that are clearly adequate?
1. Factual
Background
[3] Mr.
Vithal Sapru, an engineer by profession, applied for status as a permanent
resident in Canada as a member
of the Skilled Worker class. Included in his application were his wife Amita,
a pediatrician, and their children Radika and Rishi. Mr. Sapru and his family
members were each required to submit to a medical examination.
[4] A
medical officer reviewed the results of the medical examinations. She
completed a Medical Notification (IMM 5365) in which she diagnosed Rishi as
suffering from an intellectual disability. Based on her review of the results
of the medical examination and all the reports she had received, the medical
officer concluded that Rishi "has a health condition that might reasonably
be expected to cause excessive demand on social services" in Canada. More
particularly, the officer wrote:
This 8 year old applicant,
born Oct 18, 2001, has Developmental Delay. He has psychomotor delay and delay
in speech development secondary to perinatal hypoxia. His MRI shows reduction
in the volume of white matter with delayed myelination. His mental Age on the
Binet-Simon-Indian adaptation, is 4 years with an Intelligence Quotient of
60-65. He is currently dependent on his family for most of the activities of
daily living and is delayed in most adaptive skills. The consultant states
that Rishi is a special child who will require special care and special
education.
In the Canadian context this
applicant and his family would require a comprehensive assessment and review by
a multi-disciplinary developmental team to establish and then implement an
appropriate intervention program to deal with his medical issues and address
his adaptive skills deficiencies.
He, and his supporting family,
as appropriate, will likely require a variety of social services, in
particular, special education until the age of 21 years, speech therapy, and
other services promoting relative independence that focus on acquisition of
basic living skills and autonomy to the greatest degree possible. Training and
support will likely be needed for communication, self care, functional
academics, home living, social and community skills and health and safety.
Those services will also include access to a spectrum of supervised settings,
parent/family relief programs and respite care for care givers. His
requirement for the above mentioned multi-disciplinary services and for special
education extending through his teenage years is costly.
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 he has a health condition that might
reasonably be expected to cause excessive demand on social 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)(c) of the Immigration and Refugee Protection Act.
[5] The
medical officer went on to provide a detailed list of the social services she
believed would be required by Rishi and their costs.
[6] In
reaching this opinion, the medical officer did not conduct an individualized
assessment of Rishi's likely demand for social services (as opposed to his
eligibility for such services). This individualized assessment of likely demand
was mandated by the Supreme Court of Canada in Hilewitz v. Canada (Minister
of Citizenship and Immigration); De Jong v. Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706. The
medical officer did not conduct the required individualized assessment because,
until the decision of this Court in Colaco v. Canada (Minister of
Citizenship and Immigration), 2007 FCA 282, Citizenship and Immigration
Canada took the view that Hilewitz did not apply to applications for
permanent residence made in the Skilled Worker class. See: Citizenship and
Immigration Canada, Operational
Bulletin 063.
[7] After a designated immigration officer (immigration officer)
received the Medical Notification, he wrote to Mr. Sapru advising of the
concern that Rishi was a person whose health condition might reasonably be
expected to cause excessive demand on health or social services in Canada (Fairness
Letter). The Fairness Letter repeated verbatim from the Medical
Notification the diagnosis and particulars of the medical condition that Rishi
was said to suffer from and the social services he was said to require. The
Fairness Letter invited Mr. Sapru to submit additional information that
addressed any or all of the following items:
- the medical
condition identified in the Fairness Letter
- the social services
likely to be required in Canada as identified in
the Fairness Letter
- the family’s
individualized plan to ensure that no excessive demand would be imposed on
Canadian social services for a five-year period accompanied by a signed
"Declaration of Ability and Intent" form.
[8] The
Fairness Letter instructed that:
In order to demonstrate that
your family member will not place an excessive demand on social services, if
permitted to immigrate to Canada, you must establish to the satisfaction of the
assessing officer that you have a reasonable and workable plan, along with the
financial means and intent to implement this plan, in order to offset the
excessive demand that you would otherwise impose on social services, after immigration
to Canada.
[9] A
response (Fairness Response) was provided to the Fairness Letter. Dr. Sapru,
Rishi's mother, acknowledged that her son was “developmentally delayed” but,
based on "the two letters which I enclose herewith and which represent the
advice you were given as to his general state" she took issue with the
seriousness of the condition.
[10] Dr.
Sapru also took issue with the level of social services it was said Rishi would
require in Canada and with
what she characterized as the “generic” non-individualized assessment. She
advised that in Canada Rishi would be sent to a private school at the family's
expense and that she would also home school him because she would be unable to
pursue her profession in Canada. An indemnity agreement signed by Mr.
Sapru, his wife, and also Mr. Sapru's brother and sister-in-law who reside in Ontario was
provided. This agreement purported to indemnify the Ontario Ministers of
Education and Health for a period of five years in the event Rishi went to public
school or sought physiotherapy services paid for by the Province of Ontario. No
completed "Declaration of Ability and Intent" form was provided.
[11] As well, Mr. Sapru's brother-in-law in Canada provided an affidavit
in which he swore, among other things, that he would provide the use of a home
in Ontario to his
brother and his family upon their arrival in Canada.
[12] The
Fairness Response was sent to the medical officer for review and
consideration. A Procedural Fairness assessment was then completed by the
medical officer and sent to the immigration officer. In the Procedural
Fairness assessment the medical officer listed the additional documents she had
reviewed in the Fairness Response. She then wrote:
I have reviewed our medical
file for the above-named Foreign National along with the additional material
listed above and it is my opinion that no information has been provided which
would indicate that the original immigration medical assessment was incorrect.
Therefore there is insufficient evidence to support a change or re-evaluation
of this Foreign National’s medical assessment at this time. Hence remains M5.
[13] The
tribunal record contains no letter, note, e-mail or other writing that explains
how the medical officer analysed the information provided in the Fairness
Response or her basis for concluding that the Fairness Response contained no
information that would lead the medical officer to the view that her original
assessment was incorrect.
[14] By
letter dated June 11, 2009 (Decision Letter), the immigration officer advised
Mr. Sapru that he did not meet the requirements for permanent residence in Canada because
Rishi was inadmissible on health grounds. In the Decision Letter the
immigration officer repeated verbatim the information concerning the
diagnosis and condition as described in both the Medical Notification and the
Fairness Letter. He then wrote:
By letter dated December 9,
2008 you were advised that you may submit additional information relating to
this medical condition or diagnosis. Additional information and documents
provided by you were forwarded to our medical officer. After review, the
medical officer concluded that there are no changes in the medical assessments
and confirmed the finding of inadmissibility.
I am satisfied that the
medical officer’s opinion about your family member’s (Rishi Sapru)
inadmissibility on health grounds is reasonable. Accordingly, your accompanying family
member, Rishi Sapru, is inadmissible pursuant to section 38(1)(c) in that
your accompanying family member’s condition might reasonably be expected to
cause excessive demand on health or social services.
[emphasis
added]
[15] The
Computer Assisted Immigration Processing System (CAIPS) notes show the
immigration officer's acceptance of the opinion of the medical officer that
Rishi remained inadmissible on health grounds.
[16] The CAIPS notes also record the immigration officer’s concerns that
Mr. Sapru had not provided a credible plan for offsetting the excessive demand
Rishi would place on social services. For example, the immigration officer was
not satisfied that Dr. Sapru would stay at home to care for Rishi (because she
had worked continuously since 1992), he found the offer of a family home made
by the brother-in-law was not credible, and, because Rishi sees specialists in
India, the immigration officer was of the view Rishi would likely continue to
see medical specialists in Canada. In his view, the indemnity agreement was
not sufficient to establish that Rishi would not impose an excessive demand on
Canadian social services.
2. Decision of
the Federal Court
[17] After
setting out the factual background, the decisions of the medical and
immigration officers and the issues before the Federal Court, the Judge began
his analysis. He began by considering the standard of review. The Judge noted
that the applicants alleged that the medical officer had failed to comply with
the obligations explained by the Supreme Court in Hilewitz. The Judge
found this to be an issue of law which should be reviewed on the standard of
correctness. The medical and non-medical conclusions of the officers were to
be reviewed on the standard of reasonableness.
[18] The
Judge went on to reach the following conclusions which are relevant to this
appeal:
i.
It
is the obligation of the medical officer to perform a complete analysis of all
of the medical and non-medical factors relevant to the issue of excessive
demand on social services. The immigration officer must then review the
medical officer's decision to ensure that all relevant factors were considered
by a medical officer (paragraphs 23-26).
ii.
The
Judge relied upon an affidavit sworn by the medical officer in the application
for judicial review to conclude that the medical officer had considered the
non-medical evidence concerning the ability and intent of the family to offset
any excessive demand on social services (paragraphs 27-30 and 34).
iii.
At
the time she made her initial assessment the medical officer was not required
to make any inquiries into the applicants' ability and intent to offset any
excessive demand. The applicants were in the best position to provide evidence
of their ability and intent, and the Fairness Letter gave them a fair
opportunity to do so (paragraph 35).
iv.
The
reasons of the medical officer were inadequate because they did not explain how
she analysed the Fairness Response or how she reached her decision. However,
the inadequacy of the medical officer's reasons was saved by the detailed
reasons of the immigration officer. This was because Operational Bulletin 063
requires the immigration and medical officers to collaborate throughout the
decision-making process. This allows the immigration officer to seek
clarification from the medical officer at any time if concerned about the
reasonableness or the completeness of the medical officer's decision. Further,
the reasons of the immigration officer were sufficient to allow the applicants
to understand why their application for permanent residence was refused. The
applicants received a fair and transparent decision-making process (paragraphs
37-42).
3. Legislative
Framework
[19] The
provision of the Act of most relevance to this appeal is paragraph 38(1)(c)
which provides that a foreign national is inadmissible if their health condition
"might reasonably be expected to cause excessive demand on health or
social services." Section 42 of the Act extends this inadmissibility to
other family members:
42. A
foreign national, other than a protected person, is inadmissible on grounds
of an inadmissible family member if
(a) their
accompanying family member or, in prescribed circumstances, their
non-accompanying family member is inadmissible; or
(b) they are an
accompanying family member of an inadmissible person.
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42. Emportent,
sauf pour le résident permanent ou une personne protégée, interdiction de
territoire pour inadmissibilité familiale les faits suivants :
a)
l’interdiction de territoire frappant tout membre de sa famille qui
l’accompagne ou qui, dans les cas réglementaires, ne l’accompagne pas;
b)
accompagner, pour un membre de sa famille, un interdit de territoire.
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[20] The
Regulations amplify these provisions as follows. First, the term
"excessive demand" is defined in subsection 1(1) of the Regulations
as follows:
“excessive demand”
means
(a) 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; or
(b) a demand on
health services or social services that would add to existing waiting lists
and would increase the rate of mortality and morbidity in Canada as a result
of an inability to provide timely services to Canadian citizens or permanent
residents.
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« fardeau
excessif » Se dit :
a)
de toute charge pour les services sociaux ou les services de santé dont le
coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour
les services de santé et pour les services sociaux sur une période de cinq
années consécutives suivant la plus récente visite médicale exigée par le
présent règlement ou, s’il y a lieu de croire que des dépenses importantes
devront probablement être faites après cette période, sur une période d’au
plus dix années consécutives;
b)
de toute charge pour les services sociaux ou les services de santé qui
viendrait allonger les listes d’attente actuelles et qui augmenterait le taux
de mortalité et de morbidité au Canada vu l’impossibilité d’offrir en temps
voulu ces services aux citoyens canadiens ou aux résidents permanents.
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[21] Next,
paragraph 30(1)(a) requires foreign nationals applying for permanent
residence and their family members to submit to a medical examination.
Thereafter, subsection 30(4) of the Regulations requires:
30.
(4) Every foreign national referred to in subsection (1) who seeks
to enter Canada must hold a medical certificate, based on the most
recent medical examination to which they were required to submit under that
subsection within the previous 12 months, that indicates that their health
condition is not likely to be a danger to public health or public safety and,
unless subsection 38(2) of the Act applies, is not reasonably expected to
cause excessive demand.
[emphasis added]
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30. (4) L’étranger visé au
paragraphe (1) qui cherche à entrer au Canada doit être titulaire d’un
certificat médical attestant, sur le fondement de la plus récente
visite médicale à laquelle il a été requis de se soumettre aux termes de ce
paragraphe dans les douze mois qui précèdent, que son état de santé ne
constitue vraisemblablement pas un danger pour la santé ou la sécurité
publiques et, sauf si le paragraphe 38(2) de la Loi s’applique, ne
risque pas d’entraîner un fardeau excessif.
[Non souligné dans
l’original.]
|
[22] Section
34 the Regulations then directs the medical officer considering the foreign
national’s health condition as follows:
34. Before
concluding whether a foreign national's health condition might reasonably be
expected to cause excessive demand, an officer who is assessing the foreign national's
health condition shall consider
(a) any reports made
by a health practitioner or medical laboratory with respect to the foreign
national; and
(b) any condition
identified by the medical examination.
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34. Pour
décider si l’état de santé de l’étranger risque d’entraîner un fardeau
excessif, l’agent tient compte de ce qui suit :
a)
tout rapport établi par un spécialiste de la santé ou par un laboratoire
médical concernant l’étranger;
b)
toute maladie détectée lors de la visite médicale.
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[23] Finally,
section 20 the Regulations dictates the following to the immigration officer:
20. An officer shall determine
that a foreign national is inadmissible on health grounds if an assessment of
their health condition has been made by an officer who is responsible for the
application of sections 29 to 34 and the officer concluded that the foreign
national's health condition is likely to be a danger to public health or
public safety or might reasonably be expected to cause excessive demand.
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20. L’agent chargé du contrôle
conclut à l’interdiction de territoire de l’étranger pour motifs sanitaires
si, à l’issue d’une évaluation, l’agent chargé de l’application des articles
29 à 34 a conclu que l’état de santé de l’étranger constitue
vraisemblablement un danger pour la santé ou la sécurité publiques ou risque
d’entraîner un fardeau excessif.
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4. Issues and
Analysis
a. Standard of Review
[24] I
agree with the respondent’s submission that on appeal from a decision of the
Federal Court on an application for judicial review the standard of appellate
review is whether the Judge of the Federal Court selected the appropriate
standard of review and then applied it correctly. See: Telfer v. Canada (Revenue
Agency),
2009 FCA 23, [2009] 4 C.T.C. 123.
[25] With respect to the selection of the standard of review by the Judge
in this case, at paragraph 16 of his reasons the Judge wrote:
In the case at
bar, the applicants allege that the Medical Officer failed to comply with her
obligations as set down in Hilewitz.
That is an issue of law which should be reviewed on a standard of correctness.
The applicants also raise issues of procedural fairness which should be
reviewed on a correctness standard: Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R.
539.
[26] The
first certified question asks whether a medical officer is obliged by the Act
and the decision of the Supreme Court in Hilewitz to actively seek
relevant information from the outset of the medical officer’s inquiry. In my
view, the Judge correctly characterized this as a question of law reviewable on
the correctness standard.
[27] The
second certified question asks whether a medical officer is under a duty to
provide adequate reasons. Again, I agree with the Judge that this is a question
of what is required by the principles of procedural fairness. No deference is
owed by the Court on such questions. See: Sketchley v. Canada (Attorney
General),
2005 FCA 404 at paragraph 53.
b. The First Certified
Question
[28] For ease of reference I repeat the first certified question:
When considering whether a person is
inadmissible on health grounds pursuant to paragraph 38(1)(c) of the
Act, is a Medical Officer obligated to actively seek information about the
applicants' ability and intent to mitigate excessive demand on social services
from the outset of the inquiry, or is it sufficient for the Medical Officer to
provide a Fairness Letter and rely on the applicants' response to that letter?
[29] The
appellants submit that a medical officer's initial assessment must be made with
a view to providing the medical certificate. It follows, they submit, that in
preparing the initial medical opinion a medical officer must be cognizant of
the ultimate goal: to conduct an individualized assessment of the social
services an applicant will require, whether those services will cause an
excessive demand on social services in Canada, and whether it is possible for
the applicant to offset or attenuate any excessive demand by personal
contribution. To do so, the appellants say that a medical officer must seek out
from the outset as much information as possible in order to make the necessary
findings.
[30] The
Judge dealt with this submission at paragraph 35 of his reasons where he wrote:
[…] The applicants
are in the best position to provide evidence of their ability and intent, and
they are given a fair opportunity to do so in the Fairness Letter. There is no
reason that a Medical Officer should have to make an inquiry at an earlier
stage, as long as she considers any Fairness Response carefully and with an
open mind.
[31] In
my view the Judge was correct, for the reasons that he gave. I would add one
cautionary note. The Judge’s conclusion was premised on the basis that the
Fairness Letter gives an applicant “a fair opportunity” to respond to any
concerns. This requires the Fairness Letter to set out clearly all of the
relevant concerns so that an applicant knows the case to be met and has a true
opportunity to meaningfully respond to all of the concerns of the medical
officer.
[32] It follows that I would answer the first certified question as
follows:
A medical officer is not obligated to
seek out information about the applicants’ ability and intent to mitigate
excessive demands on social services from the outset of the inquiry. It is
sufficient for the medical officer to provide a Fairness Letter that clearly
sets out all of the relevant concerns and provides a true opportunity to
meaningfully respond to all of the concerns of the medical officer.
c. The Second Certified
Question
[33] The
second question asks:
Is a
Medical Officer under a duty to provide adequate reasons for finding that a
person is inadmissible on health grounds pursuant to paragraph 38(1)(c)
of the Act, which is independent from the Visa Officer's duty to provide
reasons and which is therefore not satisfied by the Visa Officer providing
reasons that are clearly adequate?
[34] The
Judge dealt with this question as follows:
37 The
second question is the extent to which the Medical Officer must provide reasons
for her decision. The applicants assert that her reasons with respect to the
non-medical evidence were inadequate. All she said was that she had considered
every document contained in the Fairness Response and found that it did not
change her original assessment.
38 I
have no hesitation in finding these reasons inadequate. They do not explain how
the Medical Officer analysed the Fairness Response or how she reached her
conclusions. However, the Visa Officer did provide detailed reasons for finding
that the applicants do not have ability and intent. The question is whether
this saves the Medical Officer's reasons.
39 The
applicants submit that it does not, for two reasons. First, the Visa Officer
must review the Medical Officer's decision and requires sufficient reasons from
the Medical Officer to do so. Second, since the Medical Officer is the actual
decision-maker, the applicants require her own reasons in order to understand
why their application was refused.
40 With
respect to the applicants' first argument, the Visa Officer is not in the
position of a court on an application for judicial review, whose review must
focus on the written reasons. According to Operational Bulletin 063, the
Visa Officer and the Medical Officer should collaborate throughout the
decision-making process. The Visa Officer may seek clarification from the
Medical Officer at any time if concerned about the reasonableness or
completeness of her decision. Thus, the Visa Officer does not require extensive
reasons to review the Medical Officer's decision.
41 With
respect to the applicants' second argument, it was recognized by the Supreme
Court of Canada in Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817 that reasons can be provided by a person other than the actual
decision-maker. According to the Supreme Court at paragraph 44 of Baker,
this may be
[. . .] part of the
flexibility that is necessary, as emphasized by Macdonald and Lametti, above,
when courts evaluate the requirements of the duty of fairness with recognition
of the day-to-day realities of administrative agencies and the many ways in
which the values underlying the principles of procedural fairness can be
assured. It upholds the principle that individuals are entitled to fair
procedures and open decision-making, but recognizes that in the administrative
context, this transparency may take place in various ways.
42 In
the circumstances of this case, I am satisfied that the reasons provided by the
Visa Officer are sufficient to allow the applicants to understand why their
application for permanent residence was refused. The applicants received a fair
and transparent decision-making process. This ground of judicial review cannot
succeed. [emphasis
added]
[35] To
properly consider the second certified question, I begin by considering the
respective roles of immigration officers and medical officers when assessing
medical inadmissibility.
[36] The
Judge, relying upon Hilewitz and subsection 30(4) of the Regulations,
concluded that when considering the existence of excessive demand a medical
officer must assess the likely demands to be made by an applicant upon social
services. The Judge further found that when conducting this assessment the
medical officer must take into account both medical and non-medical factors. I
agree. To this I would add that the medical officer must provide the
immigration officer with a medical opinion about any health condition an
applicant has and the likely cost of treating the condition. When an applicant
submits a plan for managing the condition, the medical officer must consider
and advise the immigration officer about things such as the feasibility and
availability of the plan. In every case, what is required of a medical officer
will reflect the information before the medical officer. Therefore, this is
not intended to be an exhaustive list of what is required of a medical officer
in every case.
[37] As
to the role of the immigration officer, the parties agree that an immigration
officer must rely upon the opinion of a medical officer about medical matters,
including the medical condition of an applicant, the likely cost of treating the
medical condition and whether the applicant’s health might reasonably be
expected to cause excessive demand on social services. They also agree that
before reliance can be placed on the opinion of a medical officer an
immigration officer is required to ensure that the opinion provided by the
medical officer is reasonable.
[38] In
the submission of counsel for the Minister:
35. This Court, in
jurisprudence dating back to some seminal decisions from the 1980s and 1990s,
confirmed there is a duty of the visa officer to ensure that the medical
opinion is reasonable. A medical opinion that is inconsistent to the point of
incoherence, or which is expressed in terms of possibility rather than
probability will be deficient. See, for example:
Ahir v.
Canada (M.E.I.), [1984] 1 F.C. 1098 (C.A.)
Bola
v. Canada (M.E.I.), (1990) 107 N.R. 311 (C.A.)
Hiramen
v. Canada (M.E.I.),
(1986), 65 N.R. 67 (C.A.)
Deol v. Canada (Minister of Employment and
Immigration),
(1992) 145 N.R. 156 (C.A.)
[39] I
agree that this principle is well-established in the jurisprudence. For
example, in Hilewitz the Supreme Court found, at paragraph 70, that the
immigration officers in the two cases before the Court had "erred by
confirming the medical officers’ refusal to account for the potential impact of
the families’ willingness to assist." While the jurisprudence cited by
the parties developed under the now repealed Immigration Act, R.S.C.
1985, c. I-2 (former Act), I am satisfied that the former Act and its associated
regulations are sufficiently similar to the current legislative regime to make this
case law applicable. I specifically note that just as section 20 of the
Regulations requires an immigration officer to find a foreign national to be
inadmissible when a medical officer has found that the foreign national’s
health condition might reasonably be expected to cause excessive demand,
subparagraph 19(1)(a)(ii) of the former Act provided:
19. (1) No person shall be granted admission who is a member
of any of the following classes:
(a) persons, who are suffering from any
disease, disorder, disability or other health impairment as a result of
the nature, severity or probable duration of which, in the opinion of a
medical officer concurred in by at least one other medical officer,
[…]
(ii) their admission would cause or might reasonably be
expected to cause
excessive demands on health or social services;
[emphasis added]
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19. (1) Les
personnes suivantes appartiennent à une catégorie non admissible :
a) celles
qui souffrent d'une maladie ou d'une invalidité dont la nature, la gravité
ou la durée probable sont telles qu'un médecin agréé, dont l'avis est
confirmé par au moins un autre médecin agréé, conclut :
. . .
(ii) soit que leur
admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les
services sociaux ou de santé;
[Non
souligné dans l’original.]
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[40] The
jurisprudence developed under the former Act established that a medical officer’s
opinion was not reasonable where, for example, a medical officer failed to
conduct an individualized assessment as required by Hilewitz, or failed
to consider all of the relevant information, or based his or her opinion on
insufficient information, or provided an opinion that was incomplete,
inconsistent or incoherent. The reasonableness of a medical opinion was to be
assessed as at the time it was given and also as at the time it was relied upon
by the immigration officer. See, for example, Gao v. Canada (Minister of
Employment and Immigration) (1993), 61 F.T.R 65 (F.C.T.D.).
[41] Having
reviewed the respective roles of the immigration and medical officers, it
follows from the obligation placed on an immigration officer to review the
reasonableness of a medical officer's opinion that a medical officer must
provide the immigration officer with sufficient information to enable the
immigration officer to be satisfied that the medical officer's opinion is
reasonable.
[42] The
particular circumstances of each case will dictate what is required for the
immigration officer to be able to assess the reasonableness of the medical
officer's opinion. For example, admissions by a foreign national contained in
the Fairness Response, without more, would likely obviate the need for detailed
reasons from the medical officer on that point. Further, a medical officer may
impart sufficient information to the immigration officer in a number of ways.
For example, a medical officer may provide adequate reasons in a report to the
immigration officer. However, adequate reasons could also be provided orally
if the immigration officer records the oral advice in the CAIPS notes, or in a
combination of written and oral communications where the oral advice is
recorded in the CAIPS notes. Thus, a medical officer might transmit his or her
notes reflecting the medical officer’s review and assessment of all of the
relevant information, or an immigration officer might record in the CAIPS notes
the relevant observations and conclusions of a medical officer made during the
course of the collaborative process between the officers contemplated by
Operational Bulletin 063. In every case, an immigration officer may seek
clarification from a medical officer and record the response of the medical
officer in the CAIPS notes. The reasons of a medical officer may be conveyed
to an immigration officer by a combination of these or other methods.
[43] What
is important is that at the time the immigration officer makes his or her
decision on admissibility, the immigration officer must have sufficient
information from the medical officer to allow the immigration officer to be
satisfied that the medical officer's opinion is reasonable.
[44] It
follows from this that I would answer the second certified question as follows:
When assessing whether a
foreign national’s health condition might reasonably be expected to cause
excessive demand, a medical officer is under a duty to provide sufficient
information to an immigration officer to allow the immigration officer to be
satisfied that the medical officer's opinion is reasonable.
d. Application of these
principles to the present case
[45] The
Judge found the reasons of the medical officer to be inadequate. I agree. No
challenge is made on this appeal to the Judge's characterization of the reasons
of the medical officer as inadequate.
[46] The Judge went on to hold, however, that
the inadequacy of the medical officer’s reasons was "saved" by the
detailed reasons of the immigration officer. The Judge's reasons for that
conclusion are found in paragraphs 39 to 42 of his reasons, which are quoted
above at paragraph 34.
[47] For
the following reasons I respectfully disagree with the Judge's conclusion that
the inadequacies of the medical officer’s reasons were overcome by the reasons
of the immigration officer.
[48] First,
the immigration officer was under an obligation to assess the reasonableness of
the medical officer's opinion. No meaningful assessment could be performed on
the basis of the inadequate reasons of the medical officer. On the facts of
this case it is especially relevant to recall that the immigration officer must
be presumed to have known that, pursuant to Citizenship and Immigration Canada
policy, the medical officer's initial assessment which led to the Fairness
Letter was not the individualized assessment mandated by Hilewitz. This
was underscored in the Fairness Response, where Dr. Sapru complained of the
generic nature of the medical officer’s assessment. With knowledge of that
defect in the initial assessment it was particularly important for the
immigration officer to satisfy himself that the medical officer had performed
the requisite individualized assessment. There was nothing before the
immigration officer that could reasonably have led him to that conclusion.
[49] Second,
the Judge relied upon Operational Bulletin 063 which states that
"[i]mmigration and medical officers should work closely together during
the process [of assessing excessive demand on social services] and document
this collaboration." However, there is no documentation of such a
collaborative process in the certified tribunal record in the present case.
The sole reference to any communication between the officers is an entry in the
CAIPS notes that records a conversation between the two officers prior to
receipt of the Fairness Response.
[50] Finally,
the Judge’s conclusion may well have been influenced by his prior finding that
the medical officer "considered the non-medical evidence in this case as
she was required to do". The Judge's finding was based upon the statement
in the medical officer’s reasons that the medical officer had read the Fairness
Response and also upon the affidavit of the medical officer filed in the
application for judicial review. In that affidavit the medical officer stated
that she had considered the applicants’ ability and intent to manage Rishi’s
needs.
[51] As
the Judge recognized, the medical officer’s statement in her reasons to the
effect that she had read the Fairness Response was insufficient to render her
reasons adequate. Little weight can be given to such a generic statement that
is silent about what the medical officer did, and whether the principles
articulated in Hilewitz were applied.
[52] With
respect to the affidavit of the medical officer, in my view the Judge's
reliance upon this affidavit was problematic in two respects. First, the
information contained in the affidavit was not before the immigration officer
when he was assessing the reasonableness of the medical officer's opinion. It
was the duty of the immigration officer to assess the reasonableness of the
medical opinion. Second, as candidly acknowledged by counsel for the Minister
in oral argument, an affidavit cannot be used to bolster the reasons of a
decision-maker on judicial review. In this Court, Justice Pelletier wrote for
the majority in Sellathurai v. Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FCA 255:
45 The
application judge may have been lead to that conclusion by the nature of the
affidavit filed by the Minister's delegate. While the letter setting out the
reasons for the refusal of Mr. Sellathurai's request deals only with the
evidence of the legitimacy of the source of the seized funds, the Minister's
delegate filed an affidavit in which he restated and reviewed the grounds for
suspicion identified by the customs officer, and indicated why he believed they
remained unanswered. In my view, this form of affidavit is inappropriate and
ought not to have been given any weight at all.
46 The
judges of the Federal Court have previously stated that a tribunal or a
decision-maker cannot improve upon the reasons given to the applicant by means
of the affidavit filed in the judicial review proceedings. In Simmonds v. Canada
(Minister of National Revenue), 2006 FC
130, 289 F.T.R. 15, Dawson J. wrote at paragraph 22 of her reasons:
I observe the transparency in
decision-making is not promoted by allowing decision-makers to supplement their
reasons after the fact in affidavits.
47 See
to the same effect Kalra
v. Canada (Minister of Citizenship and Immigration), 2003 FC 941, 29 Imm. L.R. (3d) 208, at para. 15; Yue v. Canada
(Minister of Citizenship and Immigration),
2006 FC 717, [2006] F.C.J. No. 914, at para. 3; bin Abdullah v. Canada
(Minister of Citizenship and Immigration),
2006 FC 1185, [2006] F.C.J. No. 1482, at para. 13. Any other approach to this
issue allows tribunals to remedy a defect in their decision by filing further
and better reasons in the form of an affidavit. In those circumstances, an
applicant for judicial review is being asked to hit a moving target. [emphasis
added]
[53] No
weight should have been given to the affidavit of the medical officer to the
extent the officer sought to explain or bolster her reasons.
[54] To
conclude on this issue, when considering the inadequacy of the reasons of a
medical officer the primary concern is not whether at the end of the day the
appellants received adequate reasons. The concern is whether the inadequacy of
the reasons prevented the immigration officer from assessing the reasonableness
of the medical officer's opinion.
[55] One
further issue must be considered. The respondent argued forcefully that on the
facts of this case the inadequacy of the medical officer’s reasons was not
material because the immigration officer’s reasons were not dependent on the
reasons of the medical officer. Specifically, the respondent argued that the
appellants acknowledged in the Fairness Response the existence of Rishi’s special
needs, but then failed to provide a proper plan for attenuating the demands
flowing from the special needs. In short, the respondent argued that the
immigration officer made his decision based upon non-medical factors because
reasons were not provided concerning the medical factors.
[56] Despite
Mr. McClenaghan’s articulate submissions, I have not been persuaded that the
immigration officer’s reasons were independent of the medical opinion. I begin
by noting that in the Decision Letter sent to the appellants, no reference was
made to the Fairness Response or to any admission made therein. The contents
of the Decision Letter are described at paragraph 14 above. The immigration
officer stated in the Decision Letter that he was satisfied that the medical
officer’s decision was reasonable.
[57] The
immigration officer did refer to the Fairness Response in the CAIPS notes when
setting out more detailed reasons for his decision. There, he wrote:
PI’s spouse, who is a
paediatrician, states, in her un-dated letter, that our medical assessment is
generic and not individualised. At the same time she states that she does not
dispute that Rishi has developmental delay. PI did not provide any medical
info which may suggest he has any issues with the medical assessments of the
dep. We requested him to provide a declaration of ability and intent. He
failed to submit the declaration. I am not satisfied that his supporting plan
is credible because of the following reasons:
[…]
Based on the medical
assessments and the info provided by the applicant in response to the
procedural fairness letter I am satisfied that the medical officer’s opinion
about PI family member’s inadmissibility on health grounds is reasonable. Accordingly, he is
inadmissible pursuant to A38(1)(c) in that PI’s above-stated accompanying
family member’s condition might reasonably be expected to cause excessive
demand on health or social services. [emphasis added]
[58] It
can be seen from the latter passage that the immigration officer did have
regard to the medical assessments.
[59] Equally
important to the consideration of the immigration officer’s reasons is that in
the first paragraph of the CAIPS notes quoted above, the immigration officer
erred when he stated that the applicants did not provide any medical
information that suggested they had any issue with the medical assessment of Rishi.
[60] As
explained above, Dr. Sapru, while acknowledging the existence of some
developmental delay, did take issue with the medical assessment. She wrote:
Your opinion makes it look as
if my son’s condition is far more serious than it really is. His actual
condition is mild as described from the two letters which I enclose herewith
and which represent the advice you were given as to his general state.
[61] The
two letters referred to appear to be a reference to reports found at pages 640
and 641 of the Appeal Book, Volume II. The first report was prepared by an
Epileptologist and Child Neurologist who certified Rishi to have
"microcephaly with mild learning difficulty." He went on to say
that Rishi "has gained milestones with a good catchup and goes to normal
school and takes part in all activities. He has low normal intelligence and
may be able to continue [and] cope with routines of normal school." The
second report was prepared by a "Consultant Developmental Paediatrician"
together with an "Honorary Professor & Director, Dept. of Pediatrics
& Neonatology" at a hospital for children with special needs. In
their joint opinion, Rishi has "mild developmental delay, microcephaly and
mild concentration issues." They said that he "is currently going to
a main stream school" and felt that with consistent effort he would make
good progress.
[62] This
is to be contrasted with the Medical Notification, which described Rishi’s
condition to include being “currently dependent on his family for most of the
activities of daily living” and therefore to require special care and special
education. The relevant portion of the Medical Notification is found at
paragraph 4 above.
[63] The
issue as to the seriousness of Rishi’s disability was one that the immigration
officer was not qualified to decide. It was for the medical officer to assess
the totality of the evidence and then give valid reasons for her views as to
the seriousness of any disability, what if any special needs would flow from
that disability and the likely cost of meeting those needs. The immigration
officer’s reasons were not independent of the medical opinion, such as it was. Without
a proper medical opinion as to Rishi’s condition and any resultant special needs
it was premature for the immigration officer to assess the adequacy of the appellants'
plan.
5. Conclusion
and Costs
[64] For
these reasons, I would allow the appeal and set aside the decision of the
Federal Court. Pronouncing the judgment the Federal Court should have given, I
would set aside the decision of the immigration officer and remit the matter to
another immigration officer to be redetermined on the basis of a valid medical
opinion prepared by a different medical officer. I would answer the certified
questions as follows:
Q. When
considering whether a person is inadmissible on health grounds pursuant to
paragraph 38(1)(c) of the Act, is a Medical Officer obligated to
actively seek information about the applicants' ability and intent to mitigate
excessive demand on social services from the outset of the inquiry, or is it
sufficient for the Medical Officer to provide a Fairness Letter and rely on the
applicants' response to that letter?
A. A medical officer is not
obligated to seek out information about the applicants’ ability and intent to
mitigate excessive demands on social services from the outset of the inquiry.
It is sufficient for the medical officer to provide a Fairness Letter that
clearly sets out all of the relevant concerns and provides a true opportunity
to meaningfully respond to all of the concerns of the medical officer.
Q. Is
a Medical Officer under a duty to provide adequate reasons for finding that a
person is inadmissible on health grounds pursuant to paragraph 38(1)(c)
of the Act, which is independent from the Visa Officer's duty to provide reasons
and which is therefore not satisfied by the Visa Officer providing reasons that
are clearly adequate?
A. When assessing whether a
foreign national’s health condition might reasonably be expected to cause
excessive demand, a medical officer is under a duty to provide sufficient
information to an immigration officer to allow the immigration officer to be
satisfied that the medical officer's opinion is reasonable.
[65] The
appellants seek costs, arguing that special reasons exist to justify such an
award. However, the appellants did not seek costs in their notice of appeal or
in their memorandum of fact and law. While this is a sufficient basis for
denying costs, I would add that I see no special reasons for awarding costs. In
my view, nothing in the conduct of the respondent merits an award of costs. In
the scheme of Rule 22 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22, a mere error on the part of a decision-maker
is insufficient to warrant an award of costs.
“Eleanor R. Dawson”
“I agree.
Carolyn Layden-Stevenson J.A.”
“I agree.
David Stratas J.A.”