Date: 20090810
Docket: IMM-300-09
Citation: 2009 FC 807
Ottawa, Ontario, this 10th day of August
2009
Present: The Honourable Orville
Frenette
BETWEEN:
ZOHREH VAZIRIZADEH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”) of a decision of the
Immigration Appeal Division of the Immigration and Refugee Board (the “IAD”)
dated December 12, 2008 wherein it found that, pursuant to paragraph 67(1)(c)
of the Act, there were insufficient humanitarian and compassionate
circumstances to warrant exercise of special relief in light of all the
circumstances of the case.
II. The facts
[2]
The
applicant, a Canadian citizen who resides in Toronto with her husband and two
children, sponsored her mother, Nahideh Vazirizadeh, age 70, a widow residing
in Iran, for
permanent status in Canada.
[3]
The
medical officer and the other medical evidence determined that the applicant’s
mother suffered from osteoarthritis of the knees, which would require knee
replacement surgery within five to ten years. The medical evidence also showed
that she had other ailments, was suffering from hypertension requiring
medication and had degenerative osteoporosis of the thoracic vertebrae.
[4]
In
2006, her medical doctor in Teheran, Iran, Dr. M. Rahbar,
confirmed that she would require knee replacement surgery on both knees within
five to six years. There are medical opinions on file from orthopaedic
specialists in Canada stating that she will need left knee
replacement surgery within two to three years from 2006.
[5]
On
March 4, 2007, the mother’s application for permanent residence was refused by
the visa officer on the grounds of medical inadmissibility under paragraph
38(1)(c) of the Act because her health condition “might reasonably be
expected to cause excessive demand on health or social services” in Canada.
[6]
On
September 30, 2007, i.e. six months after the above decision, she
underwent right knee replacement surgery in Iran. Her Iranian
surgeon wrote a letter in which he states that his patient could use her right
knee perfectly and that her left knee did not require replacement surgery.
[7]
The
applicant appealed the visa officer’s decision to the IAD on the grounds of
humanitarian and compassionate (“H&C”) considerations under subsection
67(1) of the Act.
[8]
In
its decision of December 12, 2008, the IAD found there were insufficient H&C
circumstances to justify the granting of special relief.
III. The impugned decision
[9]
The
applicant’s mother has been refused a permanent resident visa by a visa officer
who determined she was medically inadmissible to Canada under subsection 38(1)
of the Act, based upon the determination of the Medical Notification signed by
Dr. Valerie Hindle on October 23, 2006 that, because of osteoarthritis of
both knees requiring surgery replacement within five to ten years from 2006,
“she might reasonably be expected to cause excessive demand on health or social
services”.
[10]
The
IAD began its decision by quoting the appellant on the point that she did not
challenge the legal validity of the refusal of a visa on medical grounds. In
paragraph 7 of its decision, the IAD enunciates that the appellant’s mother had
suffered from osteoarthritis to both knees but that she underwent right knee
replacement surgery in Iran on September 30, 2007. It further quotes
from a letter of her orthopaedic specialist who states that “she is able to use
her knee perfectly and do her daily activities. As the case has subsided
regarding her right knee, she requires no surgery of her left knee”. The IAD
notes that the appellant’s mother is taking medication for high blood pressure.
[11]
The
IAD acknowledges that the appellant then argued that because her mother’s medical
inadmissibility had been “met or lessened”, a lower threshold for granting
relief was required. The IAD then discusses and analyzes the other H&C grounds,
including the best interests of the grandchildren and the appellant’s mother’s ability
to help care for them. The IAD considered that because of the wide
discretionary powers given under paragraph 67(1)(c) of the Act, once the
major obstacle to admissibility had been met or lessened, exercising such power
objectively, dispassionately, having regard to all relevant factors, it then
must decide if special relief can be granted.
[12]
After
considering all of the factors involved, the IAD then concluded the appeal could
not be granted because there were insufficient H&C circumstances to justify
it.
IV. The issue
[13]
Is
the IAD’s decision wrong in fact and in law?
V. The standard of review
[14]
It
is established that decisions involving matters of fact or law applied to
facts, are governed by the standard of reasonableness. On questions of law or
of breach of procedural fairness or the rules of natural justice, the standard
is one of correctness.
[15]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, and Canada (Minister of
Citizenship and Immigration) v. Khosa, 2009 SCC 12,
reiterated that deference must be given to administrative decisions. In Dunsmuir,
it provided guidance on the process to choose the appropriate standard of
review. The first step is to examine the jurisprudence to see if the standard is
applied to particular cases and only after a fruitless search, should a court
analyse the four factors comprising the standard of review analysis. In the
particular case of a visa officer’s determination on medical inadmissibility,
the case-law applies the standard of reasonableness (Vashishat v. Minister
of Citizenship and Immigration, 2008 FC 1346; Canada (Minister of
Employment and Immigration) v. Burgon, [1991] 3 F.C. 44 (F.C.A.)).
Therefore, I shall apply the standard of reasonableness to the decision
appealed from in the present case.
VI. Pertinent legislation
[16]
Subsection
38(1) and paragraph 67(1)(c) of the Act read as follows:
|
38.
(1) A foreign national is inadmissible on health grounds if their health
condition
(a)
is
likely to be a danger to public health;
(b)
is
likely to be a danger to public safety; or
(c)
might
reasonably be expected to cause excessive demand on health or social
services.
67. (1) To
allow an appeal, the Immigration Appeal Division must be satisfied that, at
the time that the appeal is disposed of,
[…]
(c) other
than in the case of an appeal by the
Minister, taking into account the
best interests of a child directly
affected by the decision,
sufficient humanitarian and
compassionate considerations
warrant special relief in light of
all the circumstances of the case.
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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.
67.
(1) Il est fait droit à l’appel sur preuve qu’au moment où il en est disposé
:
[.
. .]
c) sauf dans le cas de
l’appel du ministre, il y a – compte tenu de
l’intérêt supérieur de l’enfant directement
touché – des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de
l’affaire, la prise de mesures spéciales.
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VII. Analysis
[17]
The
determination as to whether or not an overseas applicant is medically
inadmissible is made by an immigration officer (or a visa officer), based on a
medical opinion. In this case, the determination was made based upon a medical
opinion of the condition of the applicant’s mother on March 4, 2007, who then
was considered inadmissible because of her medical condition at that time. This
determination is not contested by the applicant but she claims the IAD erred
because it did not consider the fact that the medical inadmissibility no longer
existed since her mother had obtained the replacement surgery on her right knee
after the decision.
[18]
The
applicant submits the IAD hearing which was a de novo hearing, did not
consider the appellant’s changed medical status. The respondent presented a
two-fold argument against the applicant’s submission. First, he contends that a
simple reading of the decision shows that the IAD analyzed the medical
condition both at the time of the visa officer’s decision in 2007 and the IAD
hearing in 2008, including the evidence of right knee replacement surgery,
physiotherapy and the opinion of the appellant’s orthopaedic specialist.
However, the IAD reiterates or quotes the original medical opinion which,
besides the likelihood of specialized knee replacement surgery, states the
appellant’s mother suffers from other medical problems, i.e.
hypertension, obesity, osteoporosis and osteoarthritis, degenerative changes of
the spine and hands and also degenerative osteoporosis of the thoracic vertebrae.
Therefore
the medical inadmissibility of the applicant’s mother has not changed
significantly since her right knee replacement surgery and with her ailments
and age, they will, according to the overriding medical opinion, accentuate. Considering
these facts, the applicant’s submission on this point is factually erroneous
because the surgical intervention has not corrected the other ailments the
applicant’s mother suffers from, some of which are degenerative.
[19]
Secondly,
the respondent pleads that the determination as to whether or not an overseas
applicant is medically inadmissible can only be reversed by the IAD on de
novo evidence that the visa officer’s decision was incorrect at the time it
was made or based on procedural fairness.
[20]
In
Mohamed v. Canada (Minister of Employment and Immigration), [1986] 3
F.C. 90, the Federal Court of Appeal held it was the medical condition at the
time the visa officer refused the visa that was the only relevant one and subsequent
improvement in the medical condition was only relevant as to whether special
relief should be granted on appeal.
[21]
The
same question had been answered in the same manner by the Federal Court of
Appeal in Shanker v. Canada (M.E.I.), [1987] F.C.J. No. 557 (QL) and Canada
(M.E.I.) v. Jiwanpuri (1990), 109 N.R. 293. See also Jugpall v. Canada
(M.C.I.), 2 Imm. L.R. (3d) 222, at paragraph 25 and Lao v. Canada
(M.C.I.), 36 Imm. L.R. (2d) 265.
[22]
I
must conclude that the respondent’s reasoning is the correct one.
[23]
Here
the applicant has not contested the visa officer’s decision as to the medical
inadmissibility at that time and the subsequent events or evidence do not
challenge the decision.
[24]
The
applicant alleges that the IAD did not consider the totality of the information
before it and her counsel’s written application. She claims that as in the Jugpall
case, supra, the IAD should have considered the reason for
inadmissibility should be assessed first and then where the inadmissibility
continues to exist, the H&C circumstances should be determined in a sliding
scale. -- It should be noted here that the decision was rendered by the
Immigration Appeal Division and the facts did not concern a medical
inadmissibility. Furthermore, it is significantly distinguishable from the case
at bar because the matter to be determined in Jugpall was “limited in
time by the statute” to the year prior to the submission of the application. In
the present case, medical inadmissibility is not statutorily limited in time
under section 38 of the Act.
[25]
The
respondent answers that the IAD noted that the applicant did not challenge the
legal validity of the visa officer’s refusal on medical grounds before it
proceeded to consider the case under paragraph 67(1)(c) of the Act, on H&C
grounds. The respondent submits the IAD, in its reasons carefully weighed the
totality of the evidence in the context of the H&C considerations,
including the replacement surgery and the letter from the orthopaedic
specialist in Iran. The IAD
then assessed the H&C considerations, on a lower threshold in light of the
current medical condition and circumstances of the applicant’s mother. It concluded
the factors in this case were neutral and exercising its discretion, it found
there were insufficient circumstances present to grant special relief.
[26]
The
case-law is clear: unless an applicant can establish that the officer’s or the IAD’s
decision of inadmissibility pursuant to subsection 38(1) of the Act, because it
might reasonably be expected to cause an excessive demand on health or social
services, is erroneous, an application for judicial review must be dismissed (Newton-Juliard
v. Canada (M.C.I.), 57 Imm. L.R. (3d) 15; Kirec v. Minister of
Citizenship and Immigration, 2006 FC 800; Airapetyan v. Minister of
Citizenship and Immigration, 2007 FC 42).
[27]
In
the present case, the visa officer’s decision is uncontested by the applicant
and the IAD decision considered all the pertinent facts including the right
knee replacement surgery and the conflicting medical opinions about the left
knee plus all the other ailments which the applicant’s mother still suffers
from.
[28]
In
my view, the decision is well founded in fact and in law and amply satisfies
the test of falling within an acceptable range of reasonable decisions (Dunsmuir,
supra) and has not met the test of the arguable case referred to in Bains
v. Canada (M.E.I.) (1990), 109 N.R. 239 (F.C.A.).
[29]
Therefore
this application for judicial review must be dismissed.
[30]
Counsel
for the applicant raised the following questions for certification at the
hearing, which were opposed by the respondent:
Which test should the Panel Member of the
Immigration Appeal Division (IAD) apply in cases where the Applicant was
refused due to medical inadmissibility and in light of the fact that IAD
hearings are hearings de novo:
1) TWO PART TEST: At
the IAD hearing, should the Panel Member first determine whether the medical
inadmissibility continues to exist (as described in s. 38 of the IRPA), and
then
a)
if it does
continue to exist, should the Panel Member then consider H&C factors?
b)
if it does
NOT continue to exist (i.e. there is no more medical barrier to the Applicant’s
admissibility), should the Panel Member cease the assessment there? (No H&C
review necessary)
OR
2) SINGLE TEST: Or is
the test simply to what degree has the medical impediment been lessened or
overcome and thus, to what degree has it lessened the H&C considerations
(the sliding scale)?
NOTE: According to the ENF 19 – Appeals
before the Immigration Appeal Division of the Immigration and Refugee Board,
section 6, under the definition of “Humanitarian and Compassionate”, this is
the test for equity under H&C grounds.
AND/OR
3) What does “wrong in law”, in the
context of section 67 of the IRPA mean and is it temporally limited (time of
original refusal or time of IAD hearing)?
[31]
I
believe it is necessary to first review the law relating to certified questions
in order to see if the test or conditions are met here.
[32]
An
appeal to the Federal Court of Appeal, in judicial review matters, is governed
by section 74(d) of the Act which reads as follows:
|
74. Judicial
review is subject to the following provisions:
[…]
(d) an
appeal to the Federal Court of Appeal may
be made only if, in rendering judgment, the
judge certifies that a serious question of general
importance is involved and states the
question.
|
74. Les règles
suivantes s’appliquent à la demande de contrôle judiciaire :
[.
. .]
d) le
jugement consécutif au contrôle judiciaire n’est
susceptible d’appel en Cour d’appel fédérale
que si le juge certifie que l’affaire soulève
une question grave de portée générale et énonce
celle-ci.
|
[33]
In
Varela v. Minister of Citizenship and Immigration, 2009 FCA 145, the
Federal Court of Appeal reminded us that there is no right to judicial review
unless leave is first granted by the Federal Court. This pre-condition forms
part of what the Court of Appeal qualifies as a “gatekeeper provision”:
[27] An integral part of this
scheme is the presence of two "gatekeeper" provisions. The first is
the requirement that leave be obtained to commence an application for judicial
review. The second is the absence of a right of appeal unless a judge of the
Federal Court certifies that a serious question of general importance is raised
by the application for judicial review. . . .
[34]
A
serious question is one that is dispositive of the appeal (see Zazai v.
Minister of Citizenship and Immigration, 2004 FCA 89). In Varela, supra,
Justice Denis Pelletier goes on to say, at paragraph 29, that it must be a
serious question of general importance which arises from the issues
in the case, and the judge who heard the case is in the best position to
identify whether such a question arises on the facts of the case. If the judge
has not seen fit to certify such a question, the pre-condition is not met and
the exceptional right of appeal under section 74 does not exist (see Denisov
v. Minister of Citizenship and Immigration, 2008 FC 550; Gittens v.
Minister of Public Safety and Emergency Preparedness, 2008 FC 526, and Varela,
supra, at paragraph 22).
[35]
The
applicant argues that although her mother was inadmissible at the time of the visa
officer’s negative decision, she was no longer inadmissible at the time of the
IAD hearing (because of the right knee replacement surgery) which was a de
novo
hearing. She relies upon the IAD decision in Jugpall which, at paragraph
8, bases itself on the case of Kahlon v. Canada (M.E.I.) (1989), 7 Imm.
L.R. (2d) 91 (F.C.A.) to state “which mandates the Appeal Division to conduct a
hearing de novo, decision-makers would have considered the current
financial circumstances of an appellant”.
[36]
In
my view, the applicant makes fundamental errors in her reasoning on this point
in that, first the IAD did consider the change in the medical status of her
mother at the time of its hearing. However, it quoted at page 1 of its decision
the reasons for the medical inadmissibility in the Medical Notification form,
which recalls the other medical problems, i.e. “hypertension,
osteoporosis with osteoarthritis degenerative changes of the spine and hands”.
There was no evidence at the time of the IAD hearing that these other medical
problems had been eliminated. Therefore one cannot conclude that the basis of
the inadmissibility had been removed.
[37]
Second,
the Kahlon decision was rendered in 1989, while the great majority of
cases, including Federal Court of Appeal decisions, do not follow the Kahlon
decision (see Mohamed, supra; Uppal v. Canada (Minister of
Employment and Immigration), [1987] 3 F.C. 565 (F.C.A.); Jiwanpuri, supra,
and Lao, supra).
[38]
It
follows that, in my view, the applicant has not satisfied the conditions
mentioned before to justify a certification of the questions raised above.
[39]
There
is no serious question of general importance raised in this case which would
open a right of appeal to the Federal Court of Appeal.
JUDGMENT
The
application for
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, of a decision of the Immigration Appeal
Division of the Immigration and Refugee Board, dated December 12, 2008, is
hereby dismissed.
No
question is certified.
“Orville
Frenette”
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