Maschio v. Canada (Minister of Citizenship and Immigration), docket IMM-3354-96

Date: 19971114

Docket: IMM-3354-96

BETWEEN:

     MICHAEL JOHN MASCHIO

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED, J.:

[1]      This is an application to set aside a decision of a visa officer, dated August 19, 1996. The decision informed the applicant that he was inadmissible to Canada as a permanent resident. He was notified that he could not be admitted because he had a medical condition that "can be expected to cause excessive demands on health or social services in Canada". Subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2, provides:

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,

(i) they are or are likely to be a danger to public health or to public safety, or

(ii) their admission would cause or might reasonably be expected to cause excessive demands on health or social services;

     (emphasis added)

Facts

[2]      The applicant is a United States citizen who applied for permanent resident status in April of 1995. He is a film producer who has offers of employment in Canada. In his application he disclosed that on December 6, 1994, he had undergone surgery for a Stage I (T2, NO, Mx) cancerous growth on his lung. The operation was successful.

[3]      Subsequent to his application he was examined by a designated doctor, in June of 1995, in Brookline, Massachusetts. The results were sent to Ottawa for evaluation by the medical doctors who evaluate applications for paragraph 19(1)(a) purposes. This led to what is called a "medical notification", dated October 30, 1995, being sent to the visa officer who was dealing with the applicant.

[4]      The medical notification stated that the applicant had been operated on in June of 1994 for a Stage III-A (T3, NO, Mx) adenocarcinoma and that he was expected to deteriorate and require regular specialist attention, specialized treatment and hospitalization. The date of the surgery and the stage of the cancerous growth that had been removed were not correctly recorded in the notification. The applicant's medical records had not been correctly read - an amendment by the pathologist who originally evaluated the growth had been overlooked.

[5]      In any event, the receipt of this notification led the visa officer to communicate its contents, by telephone, to the applicant's immigration consultant. The content of the notification and the opinion were subsequently communicated in writing to the applicant, under cover of what is referred to as a "fairness letter". This letter, dated December 6, 1995, informs the applicant of the decision that has been given and invites him to respond before a final decision is made:

Before I make a decision whether you are admissible, you may respond to the description of your medical condition(s) with new medical information of your own.

You have until February 6, 1996 to send new medical information, not previously on your immigration medical file, to the doctor who did your examination.

. . . .

It you choose to submit new medical information, you must also inform this office.

     (emphasis added)

[6]      The immigration consultant responded to the fairness letter on December 22, 1995. That response contained two letters from the applicant's attending physicians in Boston. The applicant had just undergone an annual check up that was required as a follow-up to his operation. The physicians reported that he remained disease free and his prognosis remained excellent. The response by the immigration consultant also contained a letter from the Director's Guild of America stating that the applicant was a member of that Guild and, as such, he and his wife were covered for health and vision care under the Director's Guild of America - Producer Pension and Health Plan. The coverage extended to any non-work-related health care costs that might be incurred anywhere in Canada. A copy of the terms of the plan, pertaining to the applicant, was enclosed.

[7]      The applicant himself also sent a response to the "fairness letter". In his response, dated December 30, 1996, he stated that in the medical notification: (1) the date when surgery had been performed was incorrectly recorded - it had been December 6, 1994, not June 12, 1994; (2) the type of tumour that had been removed was incorrectly described - it had been a Stage I, not a Stage III growth; (3) he had recently been examined by his attending doctors and his condition was not a deteriorating one - it was the opinion of his attending physicians (at the Deaconness Hospital and Harvard Medical School) that he was in excellent health.

[8]      An in-person interview was held on January 22, 1996. The visa officer states, in his affidavit subsequently filed for the purposes of this application, that during the interview he explained to the applicant that usually a person who had had cancer is not considered admissible to Canada until a five year disease free period has passed, and he did not know whether the medical notification of October 30, 1995, would be reversed. The visa officer states that he and the applicant also discussed the fact that the applicant carried health insurance coverage as a member of the Director's Guild of America and that the applicant fully intended to return to Boston for treatment by those who had been treating him, should any lung cancer related health difficulties arise. The visa officer states that he told the applicant that the last two factors were usually considered irrelevant to a paragraph 19(1)(a)(ii) determination.

[9]      Unbeknownst to both the applicant and the visa officer, a second medical notification had been signed on January 17, 1996. Two errors in the first notification (date of surgery and type of tumour) were corrected but the opinion in all other respect remained the same. This second notification was sent to the visa officer on February 22, 1996. The visa officer subsequently confirmed that the doctors who had signed the January 17, 1996 notification had received and considered the additional materials the applicant had provided in response to the fairness letter of December 6, 1995. He confirmed also that they were aware of the applicant's intention to return for treatment to his present physicians in Boston should a health problem arise.

[10]      The visa officer wrote two memoranda, one in May and another in July, stating that in his opinion, in all the circumstances, he could not conclude that the applicant's admission to Canada "might reasonably be expected to create excessive demands" on health services in Canada. He indicated, as well, that if the medical notification was not changed he had no choice but to send the applicant a refusal letter.

[11]      It is the administrative practice of the immigration medical officers and visa officers not to take into account statements by a prospective immigrant that he or she will not make use of Canada health care services. The medical officers assess the medical condition which the applicant has and, then, determine the likelihood of such a condition giving rise to a need for medical services and the cost of such services. A person's intention not to use Canadian health care services is not considered relevant to the assessment because: (1) once the person is in the country he or she is entitled to such services and there is no way of enforcing the commitment not to use them; (2) it is thought unfair to other applicants to take such factors into account - individuals who could afford to pay for their own health care would be given an advantage, as a result of their better economic circumstances, over prospective immigrants who do not have such financial resources. (I note that such preference is not unknown to Canada's immigration policy in other areas, viz. the entrepreneurial class immigrant.)

[12]      One of the immigration doctors, Dr. Dobie filed an affidavit for the purposes of these proceedings. He states at paragraph 21:

Dr. Lapointe and I could not in good faith make an "exception" on the Applicant's case on the ground that he currently had American medical insurance."Excessive demand" is evaluated by consideration of a prospective immigrant's identified medical condition and prognosis combined with the necessary health or social services which that condition requires for treatment ... The fact that the Applicant currently has insured access to the American health care system does not change his medical reality, nor justify us accepting him as a permanent resident, while other persons with the same condition are refused.

[13]      The visa officer wrote to the applicant on August 19, 1996, stating that his application for landing was being refused because of the medical assessment that remained unchanged from the previous December (as amended in January, as noted above).

[14]      A fairness letter was never sent with respect to the second medical notification.

[15]      The applicant obtained access to his immigration medical file on August 21, 1996, the same day he received the visa officer's refusal letter. He obtained access to the file through an Access to Information Request that had been filed some months previously.

[16]      Upon receipt of his immigration medical file the applicant learned that the immigration medical officers apply to cancer patients a 70% survival rate criteria in assessing whether a person might reasonably be expected to cause excessive demands on health services. These criteria are set out in a Medical Officer's Handbook that is used. The file also contained portions of a Textbook of Clinical Oncology that discusses survival rates. The Handbook states:

When the probability of disease-free survival at five years following successful completion of treatment is assessed to be 70% or greater, using information from the Medical officer Handbook or authoritative sources, cases may be categorized as M3.

. . . .

All patients in remission, whose probability of five year survival is judged to be less than 70%, will be assessed M5 with review generally at five years from the date of the diagnosis.

[17]      A letter was subsequently written by one of the doctors who had attended the applicant in Boston, reiterating that the applicant was in good health and that he had an excellent prognosis. An affidavit was filed by a Dr. Falk, for the purpose of these proceedings. Dr. Falk was retained by counsel for the applicant to review the medical records that had been received and to provide an expert report thereon. This he did on December 5, 1996.

[18]      Dr. Falk's assessment points out that the statistics relied upon by the department's medical officers apply as of the date on which the operation is performed (these show an average survival rate of 57% - 68%). Dr. Falk states that as the period of time from a person's operation lengthens with no recurrence of the disease, the applicant's five year survival rate increases. He states that by the time the first medical notification was received by the applicant, he was one year post-operative and the relevant survival rates would have increased by 10 - 15% over what they were at the time of the operation. By the time the refusal letter was sent in August of 1996, the rates could have increased even more. Dr. Falk states that survival rates also depend on post-operative care, and that the size of a tumour is not necessarily an indication of whether the disease is more likely than not to recur.

[19]      If the applicant had had adequate notice of the criteria the medical officers were applying and the content of his medical file, he could have provided Dr. Lo Cicero's and Falk's information to the medical officers for their consideration - rather than presenting it to the Court as evidence to support a claim that the decision by the medical officers was not well founded. A Court is not likely to second guess the medical opinion of the immigration doctors.

Issue

[20]      The applicant challenges that decision on a number of grounds: (1) the applicant was denied an adequate opportunity to respond to the medical assessment that had been made; (2) the visa officer abdicated his decision-making responsibility by deferring to the decision of the medical officers in Ottawa; (3) the decision-makers, in any event, by refusing to consider the personal circumstances of the applicant, specifically his firm intention to return to Boston for treatment should a problem arise and the existence of his Guild health insurance, fettered their discretion and failed to take into account relevant evidence. I find it necessary to consider only the first argument.

Analysis

[21]      When the applicant was interviewed in January of 1996 both he and the interviewing officer did not know that a second medical notification had been signed. Their attention was focused on the errors in the first and the attempt to correct them. While the applicant was told that the general practice was to refuse admission to cancer patients until they had been free of the disease for five years, this was a general statement. It gave him no information about the policy that the medical officers were applying and why he was being put into the same category as persons who had had Stage II, III or IV tumours removed. He must truly have been shocked to find that the immigration doctors were saying his condition was expected to deteriorate, while his own physicians were saying he was in excellent health and had an excellent prognosis.

[22]      Also, as counsel for the applicant pointed out the fairness letter tells the applicant that "he is being given the opportunity to send new medical information, not previously on your immigration medical file ...", yet the applicant does not know what is on his medical file. This is not disclosed to him, nor to visa officer. As noted, he only obtained access to that file after the refusal letter had been signed, pursuant to an Access to Information Request previously filed.

[23]      It is clear there are many difficulties with subparagraph 19(1)(a)(ii): what are "excessive demands on health ... services" (in the French text "un fardeau excessif"); are the personal circumstances of an individual relevant to a decision (e.g., in this case the applicant's health insurance coverage and his firm intention to return to Boston for treatment should that be necessary). Paragraph 19(1)(a)(ii) is being interpreted as requiring only an assessment of the health condition and the cost normally involved to treat such. If this exceeds to some unspecified (minimal?) degree, health care expenses that are likely to be incurred by an individual that does not have that health condition, a determination is made that excessive demands on the health care system can reasonably be expected? I formed the impression, after hearing counsel for the respondent's submissions, that the doctors who are being asked to make subparagraph 19(1)(a)(ii) decisions are also not happy with the vagueness of the legislative "direction" that they are given. In fairness to all, some clearer definition of what our legislators intend by this provision should be provided.

[24]      In any event, for present purposes I find it only necessary to say that, in the circumstances of this case, the applicant was not given an adequate opportunity to respond to the prospective decision that his admission "would cause or might reasonably be expected to cause excessive demands on health ... services". No fairness letter was sent out with respect to the second medical notification. The applicant did not know the contents of his medical file. He did not know what criteria were being applied to assess his medical condition. I am not saying that in all cases an applicant's medical file must be produced to him or her but only that, in the circumstance of this case, disclosure was inadequate.

[25]      As agreed with counsel, I will not sign an order until there has been an opportunity to make representations as to whether a question for certification arises. I ask counsel for the respondent to indicate, within seven calendar days of the issuance of these reasons, whether she wishes to make submissions thereon. If submissions are to be made, the respondent should make them within that seven day period. The applicant would then have a seven day period to respond and the respondent a further four calendar days for reply. The schedule indicated could of course be modified if counsel seeks such. Also, submissions by telephone conference can be arranged.

    

                                 Judge

OTTAWA, ONTARIO

November 14, 1997