Docket: IMM-4013-11
Citation: 2012 FC 75
Toronto, Ontario, January 19,
2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ISMAILA ADEBAYO ADEWUSI
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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]
Ismaila
Adebayo Adewusi seeks judicial review of the decision of an immigration officer
refusing his application for permanent residence as a member of the investor
class on the grounds that he is medically inadmissible to Canada. The
immigration officer found that Mr. Adewusi suffers from a health condition that
would be likely to cause excessive demand on the Canadian health system.
[2]
At
the conclusion of the hearing, I advised the parties that I would be allowing
the application. These are my reasons for that decision.
The Breach of Procedural Fairness
[3]
In
Sapru v. Canada (Minister of Citizenship and Immigration), 2011 FCA 35, ,
413 N.R. 70, the Federal Court of Appeal described the respective
responsibilities of medical officers and immigration officers when considering
potential medical admissibility under the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, and the Immigration and Refugee Protection
Regulations, SOR/2002-227.
[4]
Insofar
as the role of medical officers is concerned, Sapru teaches that medical
officers must provide immigration officers with medical opinions regarding any
health condition that an applicant may have, as well as the likely cost of
treating that condition. Where an applicant provides the immigration officer
with a plan for managing the condition, the plan must be examined by the
medical officer, who must then advise the immigration officer with respect to
matters such as the feasibility of the plan: Sapru at para. 36.
[5]
The
role of the immigration officer is to determine the reasonableness of the
medical officer’s opinion: Sapru at para. 37. At the time that an
immigration officer makes his or her decision on the admissibility of an
applicant, the officer must have sufficient information from the medical
officer so as to allow the officer to be satisfied that the medical opinion is
reasonable: Sapru at para. 43.
[6]
The
respondent acknowledges that in this case, the immigration officer made a final
decision in relation to Mr. Adewusi’s medical inadmissibility prior to
receiving an opinion from a medical officer addressing the substantial medical
evidence and submissions filed by Mr. Adewusi in response to a fairness letter.
[7]
This
was a clear breach of the process mandated by Sapru. The immigration
officer is not a medical expert. When the immigration officer made a final
decision with respect to Mr. Adewusi’s application without the benefit of a
proper assessment of his supplementary submissions by a qualified medical
officer, the immigration officer denied Mr. Adewusi the type of individualized
medical assessment mandated by Sapru and by decisions such as Hilewitz
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
S.C.R. 706.
The Appropriate Remedy
[8]
As a
general rule, a breach of procedural fairness will void the hearing and the
resulting decision: see Cardinal v. Kent Institution, [1985] 2 S.C.R.
643, [1985] S.C.J. No. 78 (QL). The Supreme Court of Canada observed in Cardinal
that the right to a fair hearing is “an independent, unqualified right
which finds its essential justification in the sense of procedural justice
which any person affected by an administrative decision is entitled to have”:
at para. 23. The Court went on in the same paragraph to observe that “[i]t is
not for a court to deny that right and sense of justice on the basis of
speculation as to what the result might have been had there been a [fair]
hearing”.
[9]
There
is a limited exception to this rule. That is, a reviewing court may disregard a
breach of procedural fairness “where the demerits of the claim are such that it
would in any case be hopeless”: Mobil Oil Canada Ltd. et al. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994]
S.C.J. No. 14 (QL) at para. 53. See also Yassine v. Canada (Minister of Employment
and Immigration)
(1994), 172 N.R. 308 at para. 9 (F.C.A.). This situation may arise where, for
example, the circumstances of the case involve a legal question which has an
inevitable answer: Mobil Oil at para. 52.
[10]
The respondent
argues that nothing would be served by quashing the immigration officer’s
inadmissibility decision and remitting the matter for re-determination.
According to the respondent, the outcome of Mr. Adewusi’s application for
permanent residence will inevitably be the same.
[11]
In
support of this argument, the respondent relies on affidavits filed by the
immigration and medical officers involved in assessing Mr. Adewusi’s
application.
[12]
The
medical officer’s affidavit reviews the supplementary submissions filed by Mr.
Adewusi in response to a fairness letter. The officer states that this
additional information did not change his original conclusion that Mr. Adewusi
suffers from a serious health condition that would be likely to cause
significant demand on the Canadian health system.
[13]
The
immigration officer’s affidavit refers to the opinion that was provided by the
medical officer shortly after the immigration officer made his decision
refusing Mr. Adewusi’s application for permanent residence. The immigration
officer says that had he reviewed that opinion prior to making the decision
under review, he still would have found Mr. Adewusi to be medically
inadmissible.
[14]
As
a general rule, applications for judicial review are to be conducted on the
basis of the record that was before the original decision-maker. Additional
evidence may be admissible on an application for judicial review where, as
here, an issue arises with respect to the fairness of the process that was
followed in arriving at the decision under review.
[15]
However,
this is a narrow exception. It does not allow a party to adduce affidavit
evidence on an application for judicial review in an effort to bolster its
position by attempting to cure a defect in the decision-making process.
[16]
The
immigration officer’s affidavit is proper to the extent that it acknowledges
the procedural error that was made in this case and attempts to explain how it
occurred. However, I am not prepared to accord any weight to the portions of
the affidavit in which the immigration officer speculates as to how he would
have decided Mr. Adewusi’s application for permanent residence had he had the
proper medical information before him.
[17]
Insofar
as the medical opinion contained in the affidavit of the medical officer is
concerned, it is not for this Court to decide whether the medical officer’s
opinion is reasonable. That is the responsibility of an immigration officer in
carrying out an admissibility determination.
[18]
Moreover,
the medical officer’s affidavit provides reasons for confirming his original
assessment of Mr. Adewusi’s medical admissibility which do not appear in the
assessment completed by the medical officer shortly after the immigration
officer’s decision to refuse Mr. Adewusi’s application for permanent residence.
No weight
should be given to this affidavit to the extent that it seeks to provide additional
reasons for affirming the medical officer’s original assessment of Mr. Adewusi’s
medical condition.
[19]
The
submissions provided by Mr. Adewusi in response to the fairness letter raise a
question as to the accuracy of the medical officer’s diagnosis and prognosis.
In addition to providing several additional medical reports that were not
before the medical officer when he made his original assessment, Mr. Adewusi
also highlighted the diverging diagnoses that he had received from his doctors,
his continuing lack of symptoms, and the fact that his condition had not
deteriorated over time. These factors potentially call into question the
accuracy of the medical officer’s original diagnosis.
[20]
As
a result, I cannot say at this point that Mr. Adewusi’s application for
permanent residency is doomed to failure. The immigration officer’s decision
will therefore be set aside, and the matter will be remitted to a different
immigration officer and a different medical officer for re-determination.
Costs
[21]
Counsel for Mr. Adewusi submits that the breach
of procedural fairness in this case was so self-evident that an order of costs
should be made in his favour. He further submits that the explanation provided
in immigration officer’s affidavit for the error that occurred in this case is
misleading, and is not credible in light of documents appearing in the tribunal
record.
[22]
Costs
are not ordinarily awarded in immigration proceedings in this Court. Rule 22 of
the Federal Courts Immigration and Refugee Protection Rules,
SOR/93-22 provides that “No costs shall be awarded to or payable by any
party in respect of an application for leave, an application for judicial review
or an appeal under these Rules unless the Court, for special reasons, so
orders”.
[23]
The
threshold for establishing the existence of “special reasons” is high, and each
case will turn on its own particular circumstances: Ibrahim v. Canada (Minister of Citizenship
and Immigration),
2007 FC 1342, [2007] F.C.J. No. 1734 (QL) at para. 8.
[24]
This
Court has found special reasons to exist where one party has acted in a manner
that may be characterized as unfair, oppressive, improper or actuated by bad
faith: see Manivannan v. Canada (Minister of Citizenship and Immigration),
2008 FC 1392, [2008] F.C.J. No. 1754 (QL) at para. 51.
[25]
“Special
reasons” have also been found to exist where there is conduct that
unnecessarily or unreasonably prolongs the proceedings: see, for example, John
Doe v. Canada (Minister of Citizenship and Immigration), 2006 FC 535,
[2006] F.C.J. No. 674 (QL); Johnson v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1262, [2005] F.C.J. No. 1523 (QL) at para. 26; and Qin
v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1154, [2002] F.C.J. No. 1576 (QL). In
my view, this is not such a case.
[26]
The
fact that an immigration application for judicial review is opposed and the
tribunal is subsequently found to have erred does not, by itself, give rise to
a “special reason” justifying an award of costs. I am not satisfied that the decision
of the respondent to defend this application was so unreasonable as to entitle Mr. Adewusi
to an award of costs.
[27]
I
am also not prepared to make a finding of misconduct on the part of the
immigration officer on the strength of the record before me. An allegation that
a government official has provided misleading information under oath in a
judicial proceeding is a very serious allegation, and a person accused of such
misconduct must have a fair opportunity to respond to the allegations against
him or her.
[28]
While
Mr. Adewusi has raised questions with respect to the immigration officer’s
explanation for the error that occurred in the processing of this case, he
chose not to cross-examine the officer on his affidavit. As a result, Mr.
Adewusi’s concerns were never put to the officer, and the officer has never
been afforded an opportunity to address them.
[29]
I
am therefore not persuaded that this is an appropriate case for costs.
Conclusion
[30]
For
these reasons, I have concluded that the application for judicial review should
be allowed.
Certification
[31]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed and Mr. Adewusi’s application for permanent
residence is remitted to a
different
immigration officer and a different medical officer for re-determination; and
2.
No serious question of general importance is certified.
“Anne Mactavish”
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