Date: 19990716
Docket: IMM-3082-98
BETWEEN:
GURPAL KAUR GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
[1] Sukhdarshan Singh Gill, a 66 years old citizen of India, applied to the High Commission in New Delhi for a visa to enter Canada as a permanent resident. His admission was sponsored by his wife and his son who already reside here.
[2] Mr. and Ms. Gill originally entered Canada as permanent residents in January 1993. They returned to India ten months later because Mr. Gill"s mother was ill and to attend to the disposition of family property with a view to transferring their assets to Canada. They were granted returning resident permits which were valid until August 1994. Ms. Gill returned to Canada before her permit expired, but Mr. Gill did not.
[3] Mr. Gill made an application for a visa in 1996, but it was refused on the ground that he was inadmissible under paragraph 19(1)(a)(ii) of the Immigration Act R.S.C. 1985, c. I-2. The visa officer decided that, because Mr. Gill had osteoarthritis of the knee, and required a knee replacement, he might reasonably be expected to cause excessive demands on health services in Canada.
[4] Ms. Gill, her husband"s sponsor, appealed against this decision to the Immigration Appeal Division of the Immigration and Refugee Board under paragraphs (a ) and (b) of subsection 77(3), alleging that the finding of medical inadmissibility was wrong in fact or in law and that, in the alternative, there existed compassionate or humanitarian considerations warranting the grant of special relief.
[5] The appeal was dismissed. The presiding member held that it was not his function to substitute his opinion for that of the medical officers either on Mr. Gill"s medical condition, or on whether his admission would therefore impose excessive demands on health services in Canada. He had only to be satisfied, and he was, that their opinion was not unreasonable.
[6] On the issue of compassionate or humanitarian considerations, the presiding member observed that, apart from the presence in Canada of Mr. Gill"s wife and children, there was little evidence of hardship that would result if he were refused entry on medical grounds. While paragraph 3(c ) of the Immigration Act provides that family reunification is one of the statutory objectives, the fact that a refusal of a visa prevents a person from joining close family members in Canada is not in itself sufficient to constitute compassionate or humanitarian considerations for the purpose of paragraph 77(3)(b) of the Act when the person in question is otherwise inadmissible.
[7] Nonetheless, the presiding member also indicated in his reasons that he may not have had the full story before him:
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It was open to counsel to adduce evidence from family members present respecting the issue of compassionate and humanitarian considerations. To the extent possible, this, in my view, was not done. The resulting paucity of evidence is not helpful to the panel in reaching a conclusion that would be favourable to the appellant. |
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[8] Counsel attacked the Appeal Division"s decision on two grounds. First, he argued that the applicant had not had a reasonable opportunity to put her case to the panel. The presiding member had rejected documentary evidence pertaining to the seriousness of Mr. Gill"s medical condition, and had effectively precluded the applicant, her son and her representative (who was not counsel in the application for judicial review) from making oral submissions to support the claim that humanitarian or compassionate considerations justified the admission of Mr. Gill.
[9] Second, counsel submitted that the Appeal Division erred in law when it upheld the visa officer"s determination that the admission of Mr. Gill as a permanent resident might reasonably be expected to impose an excessive demand on health services.
1. The exclusion of evidence
[10] The applicant"s representative at the hearing before the Appeal Division sought to adduce medical reports and photographs of Mr. Gill bending and exercising as evidence that his osteoarthritic knee did not require immediate replacement, contrary to the statement of the medical officers on whose opinion the visa officer had relied. None of these documents appears to have been filed previously with the Appeal Division, nor disclosed to the case presenting officer.
[11] The presiding member evidently looked at the photographs and excluded them as irrelevant, although it would seem from a later comment that he made that he probably meant that in his opinion they were of either no or negligible probative value of the fact that they were tendered to prove, namely the condition of Mr. Gill"s knees. It is difficult to tell from the transcript what the other documents were, although they apparently included the results of tests performed on Mr. Gill that supported the opinion of the doctors whom he had consulted.
[12] In the absence of statutory provisions to the contrary, administrative tribunals are not generally bound by the formal rules of evidence. In recognition of their expertise in the factual issues with which they deal, administrative tribunals are also afforded considerable latitude in their assessment of the relevance and probative value of material that is tendered as evidence in their proceedings.
[13] Accordingly, whether the Refugee Division erred in law, or denied the applicant procedural fairness, by excluding the documents does not depend on whether, if I had been the trier of fact, I would have found them to be of assistance and admitted them, despite any apparent irregularities in filing them. Rather, the question is whether, in light of all the circumstances of the case, the excluded material would so have advanced the applicant"s claim that no tribunal, acting fairly and reasonably, would have refused to admit it, even if not properly filed and disclosed to the opposing party.
[14] The presiding member"s refusal to admit the documents other than the photographs clearly cannot be so characterized. For one thing, counsel for the applicant was unable to establish their precise content. Furthermore, if they included test results they probably added little to the cogency of the medical opinions, which were properly before the Appeal Division.
[15] As for the photographs, I do not agree that they had no probative value, even though they do not appear to have been dated, and cannot provide direct evidence to contradict the specialist"s observation that Mr. Gill"s osteoarthritic left knee caused him to walk with a limp.
[16] I would have thought that a person who required an immediate knee replacement, as the medical officer on whom the visa officer relied stated, would find it very difficult to engage in the activities shown in these photographs. Furthermore, they tended to support the oral evidence of a witness who said that Mr. Gill had never complained to him that he was suffering from pain in his knee.
[17] Nonetheless, I am not satisfied that the photographs were of such probative value that their exclusion can be considered to be an error of law justifying judicial intervention.
b) oral evidence
[18] Counsel for the applicant submitted that on two occasions the presiding member effectively prevented oral representations from being made by and on behalf of the applicant that would have comprised relevant evidence in support of the claim that humanitarian or compassionate considerations justified allowing the appeal. In so doing, he submitted, the presiding member erred in law or breached the duty of fairness.
[19] First, the applicant"s counsel at the hearing of the appeal started to ask Mr. Gill"s son-in-law, whom he had called as a witness, about the reason why, after being in Canada for a short time after his admission, Mr. Gill had left for India, where he stayed beyond the time when he had a right to re-enter as a returning resident. The purpose of this question was to demonstrate that the circumstances surrounding Mr. Gill"s departure for and stay in India supported the applicant"s argument that, even if the refusal to admit him on medical grounds was unimpeachable, there were compassionate or humanitarian circumstances warranting the grant of special relief.
[20] However, the presiding member rather curtly cut off counsel"s questions, saying, "What"s the relevance here, counsel? We"re not on the permanent resident aspect." This latter observation is a reference to a dispute that had arisen between counsel and the presiding member early in the proceeding, when counsel had sought to argue that Mr. Gill should have been re-admitted to Canada because he had not lost his permanent resident status, an issue that the presiding member held was beyond the scope of the appeal.
[21] Of course, when challenged by the presiding member on the question of relevance, counsel should have explained that he was now raising the issue in a context that was within the Appeal Division"s jurisdiction, namely the existence of compassionate or humanitarian considerations. But he did not. He simply switched to a different line of questions.
[22] In my opinion, the presiding member"s intervention, challenging as it may have been, did not amount to an outright refusal to permit counsel to put his questions: it simply asked for an explanation of their relevance. While not a lawyer, the applicant"s counsel had been a member of the Immigration and Refugee Board and was very familiar with the hearing process.
[23] Counsel"s failure to stand his ground and to show the presiding member that his questions were not put simply to go over old ground, but to make a new and relevant point, does not amount to a denial of procedural fairness by the tribunal, or to an unlawful refusal to admit relevant evidence. Any error of judgment made by counsel in not persisting with the questions that he intended to ask is, under the adversarial process before the Appeal Division, attributed to counsel"s principal, Ms. Gill.
[24] The second incident occurred later in the hearing, after the two witnesses called on behalf of the applicant had given their evidence. By way of background it is important to note that, before any evidence was given, the presiding member had asked counsel which of the people present he was going to call as a witness, and told him that he would not permit a person to testify who had been in the hearing room while earlier witnesses were giving their evidence. He added that, once counsel had identified his witnesses, he would not be permitted to change his mind: the member would not hear evidence from a person who had been present when earlier witnesses had testified.
[25] Counsel informed the presiding member that only Mr. Gill"s son, and a son-in-law, would be giving evidence. The presiding member specifically asked if any of the three women at the back of the room, whom he understood included the appellant, Ms. Gill, was going to be called. When he was told that none of them was going to testify, he said that they could remain in the hearing room. Mr. Gill"s son was the first witness to give evidence, and his brother-in-law, who was to be the other witness left the room.
[26] In the affidavit that he filed to support this application for judicial review Mr. Gill"s son stated that he realized after he and the other witness had given their evidence that they had not said everything that could be said on the compassionate and humanitarian aspect of the appeal. Accordingly,
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I decided to interject and asked the Board member if I could say something more. The Board member told me that since my evidence had been completed, I could not say anything further. |
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[27] The transcript does not support Mr. Gill`s recollection of what transpired at the hearing.
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INTERPRETER: (inaudible) say something? Can she say something? |
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PRESIDING MEMBER: No. See, that"s why I spent so much time at the outset going over the issue as to whether she was going to give evidence or not. Please proceed. |
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[28] "She" refers to Ms. Gill. It would appear from the transcript that it was Ms. Gill, not her son, who wanted to speak, and that the reason that the presiding member did not permit her to give evidence at that point was because counsel had previously advised the presiding member that she would not be called as a witness, and accordingly she had remained in the hearing room while the other witnesses gave their evidence.
[29] In my opinion the presiding member committed an error of law in refusing the applicant"s request to speak. Parties to an administrative proceeding are entitled to be present throughout, and cannot be excluded because they are going to be called as a witness. For this reason, the appellant before the Appeal Division normally testifies first. This did not happen in this case because counsel had told the presiding member that Ms. Gill would not be called as a witness.
[30] Nonetheless, when she later wanted to speak it was open to the member to give less weight to anything that she might say because of her presence in the room when the other witnesses had testified. He erred, however, in refusing to permit her to testify because she had remained in the hearing room, which she was entitled as a party to do.
[31] Accordingly, the applicant did not have an adequate opportunity to present to the Board all the material that she wished that was relevant to the humanitarian and compassionate ground of her appeal, particularly in respect of the circumstances under which Mr. Gill was absent from Canada after his original admission as a permanent resident. Indeed, as I noted earlier, the presiding member acknowledged in his reasons for decision that there was more information that family members might have given that could have helped him to reach a decision favourable to the appellant.
[32] On the other hand, if, as he stated in his affidavit, Mr. Gill had attempted to say something more in support of his father`s admission on humanitarian or compassionate grounds after he had completed his evidence, the presiding member`s refusal to hear further from him was not an error that is reviewable on the limited grounds available in in this Court. Administrative tribunals are masters of their own procedure, and subject to any applicable statutory rules and to the duty of fairness, courts should not lightly interfere with their exercise of discretion in the conduct of their hearings.
[33] This is sufficient for me to set aside the Appeal Division"s decision and to remit the matter to a differently constituted panel. It is not necessary for me to consider the medical admissibility issue, save to say this.
[34] The fact that many Canadians of Mr. Gill"s age require a particular operation (such as, in this case, a knee replacement), and that some have to wait a long time to have it, or to go to a hospital in the United States, cannot justify in law a finding that the admission of a person who also needs this operation will impose excessive demands on the health service. In this situation any "excessive demand" is caused by the devotion of resources that are inadequate to meet a demand from the present population, not by the admission of an otherwise qualified applicant for a visa.
[35] For these reasons the application for judicial review is granted.
OTTAWA, ONTARIO John M. Evans
July 16, 1999. J.F.C.C.
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