Docket: IMM-4148-10
Citation: 2011 FC 973
Ottawa, Ontario, August 3,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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ASHISH DHAWAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of the decision of the Immigration Appeal
Division (IAD) of the Immigration and Refugee Board dismissing the Applicant’s
appeal of a Visa Officer’s refusal to issue family class visas to the
Applicant’s parents. The Medical Officer concluded that admitting the
Applicant’s father would place “excessive demand” on Canada’s health and
social services.
[2]
Based
on the reasons below, this application is allowed.
I. Background
A. Factual
Background
[3]
The
Applicant, Ashish Dhawan, is a Canadian citizen who arrived as an immigrant in
2003. In 2007 the Applicant’s mother and father (currently aged 66 and 71)
applied to Citizenship and Immigration Canada (CIC) for sponsored family class
visas.
[4]
The
Applicant’s parents underwent mandatory medical examinations in India. The examining
physician, Dr. Chandra, saw the Applicant’s father on two occasions: March 8 and 15, 2008.
Due to a stroke suffered by the father in 1996, Dr. Chandra found that the
father experienced left-sided hemiplegia. The hemiplegia coupled with other
medical issues led Dr. Chandra to predict that the father would experience
increased medical difficulties in the future and that he would remain dependent
on others for much of his personal care. Dr. Chandra completed an “Activity of
Daily Living Form” which showed that, in Dr. Chandra’s opinion, the father
currently required assistance with, or was totally dependent upon other people
to carry out many daily activities.
[5]
A
Canadian Medical Officer, Dr. Monique-Louise LeBlanc, reviewed all of the
reports of the medical examinations. She set out a detailed prognosis in a CIC
“Medical Notification” form dated January 8, 2008. She concluded that the
father suffers from cerebrovascular disease, a health condition that might
reasonably be expected to cause an excessive demand on health and social
services. She therefore found the father inadmissible under paragraph 38(1)(c)
of the Immigration and Refugee Protection Act, RS 2001, c 27 [IRPA].
[6]
By
way of a fairness letter dated August 20, 2008, the Applicant’s parents were
invited to comment and provide evidence in response to the Medical Officer’s
report. The Applicant’s father provided CIC with a number of additional
documents and reports as well as a detailed letter from a Toronto neurologist,
Dr. Dimitrakoudis. The Medical Officer reviewed the additional material, but
found it insufficient to alter her initial opinion. She came to the conclusion
that the original medical assessment was correct.
[7]
Consequently,
the Visa Officer informed the Applicant’s parents by way of letter dated March
18, 2009 that they were inadmissible on health grounds. The Applicant appealed
this decision to the IAD arguing that the medical opinion of Dr. Dimitrakoudis
should be accepted in preference to the medical opinion of Dr. Chandra.
B. Impugned
Decision
[8]
Before
the IAD the Applicant was unable to establish that the Medical Officer’s
opinion was unreasonable. The IAD found that the Medical Officer gave due
consideration to Dr. Dimitrakoudis’ report, and although Dr. Dimitrakoudis
and the Medical Officer held divergent opinions about the father’s prognosis,
there was no dispute about the basic points, which were that the father
suffered a stroke in 1996 and that he continues to suffer after-effects of that
stroke to date. The main contention between the report of Dr. Dimitrakoudis
and the Medical Officer was regarding the father’s left-side hemiplegia. The IAD
noted that Dr. Dimitrakoudis provided the caveat that he had not seen documents
with respect to that aspect of the father’s condition, while the Medical
Officer had the full benefit of Dr. Chandra’s report, and Dr. Chandra had the
benefit of seeing the father in-person. Regarding the father’s ability to care
for himself, the IAD preferred the statements of Dr. Chandra over the evidence
of the Applicant and his wife.
[9]
The
Applicant argued that his father had a sufficient net worth to carry the
financial burden of his own health and social services needs. However, the IAD
found the father had not expressed this intent and, nevertheless, as per Deol
v Canada (Minister of Citizenship and Immigration), 2002 FCA 271, [2003]
1 FC 301, the IAD could not place reliance on the testimony of the Applicant as
indicative of the father’s ability and willingness to pay for publicly-funded
treatment and services to which he would be entitled as a permanent resident.
The IAD concluded that the Visa Officer’s decision was well founded and valid
in law.
[10]
The
IAD then went on to consider if there were sufficient humanitarian and
compassionate (H&C) considerations to warrant special relief. The IAD
engaged in a complete analysis. The IAD was not persuaded that the best interests
of the Applicant’s dependent daughter required the presence of the Applicant’s
father in Canada. The IAD
was not satisfied that the Applicant had discharged his onus of showing that
special relief was warranted.
II. Issues
[11]
The
Applicant raises the following issues:
(a) Did the IAD make capricious findings
of fact in finding that Toronto neurologist Dr. Dimitrakoudis
had not seen all relevant documents with respect to the patient’s alleged
left-side hemiplegia while finding that the immigration physician Dr. Chandra
had access to all of these documents?
(b) Did the visa post and the IAD err in
law in its analysis of Dr. Dimitrakoudis’ medical opinion?
(c) Did
the IAD err in its reliance on the case of Mohamed v Canada, [1986] 3 FC
90, 68 NR 220 (FCA)?
(d) Did
the visa post and the IAD make capricious findings of fact with respect to the
degree of assistance that the Applicant’s father requires in daily living?
(e) Did
the IAD err in law in failing to consider at all the updated report provided by
Dr. Dimitrakoudis dated November 4, 2009?
(f) Did
the IAD err in assuming that financial information with respect to the
Applicant’s parents was not submitted to the visa post?
(g) Did
the IAD err in doubting the reliance that can be placed upon financial statements
from India which are
handwritten?
(h) Did
the IAD err in stating that there was no direct indication from the Applicant’s
father of his intention to pay for any excessive demand out of his own
resources?
(i) Did
the IAD properly consider the Applicant’s duty to his parents in the context of
Indian Hindu culture?
[12]
For
his part, the Respondent frames the issues as:
(a) Was
the IAD’s decision dismissing the Applicant’s appeal reasonable?
[13]
For
the purpose of dealing with all of the issues identified by the Applicant, I
will group them as follows:
(a) Did
the IAD act reasonably in preferring the report of the Medical Officer over the
report of Dr. Dimitrakoudis?
(b) Did the IAD misinterpret the
case law?
(c) Did the Board make any
capricious findings of fact?
(d) Did
the Board err in its consideration of the relevance of the Applicant’s family’s
financial resources?
(e) Did the IAD err in its
consideration of H&C factors?
III. Legislative Scheme
[14]
Foreign
nationals may be found inadmissible to Canada on health
grounds pursuant to subsection 38(1) of the IRPA which provides:
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Health
grounds
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.
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Motifs
sanitaires
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.
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IV. Standard of Review
[15]
The
issues the Applicant raises have to do with the way evidence was weighed and
assessed by the IAD. These questions are factual in nature and ought to be
reviewed on the reasonableness standard (Buenavista v Canada (Minister of
Citizenship and Immigration), 2008 FC 609, 167 ACWS (3d) 781 at
para 4). This Court has previously held that the decisions of a medical
officer attract a standard of review of reasonableness (Mazhari v Canada (Minister of
Citizenship and Immigration), 2010 FC 467, 367 FTR 238 at para 9).
Consequently, this Court should not interfere with a decision that is
justified, transparent, intelligible and falls within a range of possible
outcomes that are defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 47).
V. Argument and Analysis
Preliminary Matter:
Motion to Include Updated Letter from Dr. Dimitrakoudis
[16]
Respondent’s
counsel provided Dr. Dimitrakoudis with Dr. Chandra’s letter and Report, which
he had not examined as part of his initial review. In response, Dr.
Dimitrakoudis supplied a revised medical opinion by way of letter dated January
6, 2011. The Respondent brings a motion seeking an order to have this letter
added to the existing Certified Tribunal Record (CTR) as this third opinion
letter arrived only after the deadline for the Respondent to file further
affidavits.
[17]
The
Applicant agrees that the January 6, 2011 letter should be included in the
CTR. He further submits that an e-mail from Dr. Dimitrakoudis to Applicant’s
counsel dated January 4, 2011, containing what Applicant’s counsel
characterizes as a clarification to the letter, should also be included in the
CTR.
[18]
I
am of the view that the January 6, 2011 letter is helpful to the Court in that
it clarifies the matter of whether Dr. Dimitrakoudis had the benefit of seeing
Dr. Chandra’s reports, which is disputed in the Applicant’s written
submissions. This letter acts to explain prior evidence that was put before
the Board and is at issue in this judicial review.
[19]
As
for the e-mail thread, while it may have provided clarification for the
Applicant’s counsel, it is not of great assistance to the Court. It is seemingly
an attempt by Applicant’s counsel to introduce additional evidence upon
judicial review that was not before the IAD. It is well-settled law that the
Court may exceptionally receive additional evidence beyond that which was
before the decision-maker when issues of procedural fairness or jurisdiction
are raised (McFadyen v Canada (Attorney General), 2005 FCA
360, 341 NR 345 at paras 14 and 15). The present thread does not raise these
types of issues, and only attempts to put this Court in the position of
re-weighing medical evidence that was before the IAD. That is not the Court’s
role on judicial review, and therefore I do not see any reason to add the
“clarification” that pre-dated the final opinion letter to the CTR. Surely if
the clarification had been vital, Dr. Dimitrakoudis would have edited his
response to Respondent’s counsel, since he initially e-mailed the Applicant
with this intention.
A. Did
the IAD Act Reasonably in Preferring the Report of the Medical Officer Over the
Report of Dr. Dimitrakoudis?
[20]
The
Applicant submits that the IAD made a capricious finding of fact in determining
that Dr. Dimitrakoudis was not provided with all of the relevant documents which
were before the Medical Officer. Thanks to Dr. Dimitrakoudis’ letter of
January 6, 2011, it is now clear that Dr. Dimitrakoudis, “did not
previously receive or review a copy of the letter dated March 18, 2008 (Dr.
Vijay Chandra) or the attached ADL checklist.” Dr. Dimitrakoudis indicated
that “the documents are relevant in that they clearly indicate a left hemiparesis
and multiple functional deficits at the time of examination in March 2008.”
This is clearly not the basis for finding any reviewable error in the IAD’s
decision.
[21]
The
Applicant submits, however, that error can be found in the Medical Officer’s
inadequate analysis of Dr. Dimitrakoudis’ medical opinion, which was sent in
response to the fairness letter. The Applicant argues that the only evidence
on the record that the Medical Officer considered Dr. Dimitrakoudis’
medical reports is a form on which all documents are listed. Under this, the
Medical Officer wrote:
I have reviewed our medical file for the
above-named Foreign National along with the additional material listed above 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 the Foreign
National’s medical assessment at this time. Remain M5.
[22]
The
IAD found it reasonable, absent evidence to the contrary, to expect that the
Medical Officer would have given due consideration to the evidence. The IAD
would not infer that the use of a form indicated otherwise.
[23]
The
Applicant submits that this is contrary to a recent IAD decision, Tong v
Canada, 2009 IADD No 797, in which the tribunal found that the medical
officer was required to weigh the evidence presented to him in a meaningful way
and was under a duty to show that the evidence was weighed.
[24]
The
Respondent submits that it was open and reasonable for the IAD to give more
weight to, and prefer the medical opinion of the Medical Officer and the
examining doctor over that of the evidence of Dr. Dimitrakoudis, whose opinion
was not based on all of the evidence.
[25]
The
recent Federal Court of Appeal decision Sapru v Canada (Minister of
Citizenship and Immigration), 2011 FCA 35, 413 NR 70, is most
instructive on this point. Having reviewed the respective roles of the
immigration and medical officers, the Court of Appeal found that the obligation
of the immigration officer to review the reasonableness of a medical officer’s
opinion necessarily requires the medical officer to provide the immigration
officer with sufficient information to enable this assessment to take place
(see para 41).
[26]
This
information can be provided to the immigration officer in a number of ways – in
a written report, orally (if captured in the officer’s Computer Assisted
Immigration Processing System (CAIPS) notes), or a combination of the two
methods.
[27]
A
review of the CTR shows no reference in the CAIPS notes to any communication or
collaboration between the Medical Officer and the Immigration Officer. Only the
generic form letter is captured indicating that the Medical Officer reviewed
the submissions and came to the conclusion that her initial opinion was
correct. There is nothing explaining how the Medical Officer analyzed the new
information, or why it was considered insufficient to disrupt the previous
finding. Her reasons are inadequate. As held by the Court of Appeal, the mere
statement that the medical officer had read the fairness response is
insufficient and “little weight can be given to such a generic statement that
is silent about what the medical officer did…” (para 51). As such, there is no
assurance that the Immigration Officer was able to assess the reasonableness of
the Medical Officer’s opinion. The application of this recent jurisprudence
renders the IAD’s decision that, “in the absence of evidence to the contrary,
the panel finds that it [sic] reasonable to expect that the Medical Officer
would have given due consideration to Dr. Dimitrakoudis’ letter”, unreasonable.
[28]
For
this reason, I would allow the judicial review and set aside the decision of
the IAD and remit the matter to another panel. The judicial review can be
disposed of on this basis alone and there is no need to address the other
issues raised by the Applicant.
VI. Conclusion
[29]
No
question was proposed for certification and none arises.
[30]
In
consideration of the above conclusions, this application for judicial review is
allowed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is allowed.
“ D.
G. Near ”
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