Date: 20080521
Docket: IMM-5015-07
Citation: 2008 FC 639
Ottawa, Ontario, May 21,
2008
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
MONICA
AGGARWAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is an adult female citizen of Canada. She seeks
to have her father, mother and adult sister, all of whom presently reside in India, secure a
visa so that they may enter Canada and reside near her in Canada. The
Applicant has three other sisters, two of whom reside in the United
States
and one of whom appears to be a student in the United States.
[2]
The
Applicant’s mother was denied a visa on the basis that a medical examination
conducted on behalf of the Canadian government revealed that she had problems
with her knees which were predicted to degenerate requiring surgical knee
replacement with postoperative rehabilitation and physiotherapy. Thus it was
determined by an Officer of the Canadian High Commission in India by a decision
dated May 1, 2006 that the mother was inadmissible under section 38(1)(c) of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
This decision was appealed to a panel of the Immigration Appeal Division of the
Immigration and Refugee Board (IAD). The IAD considered not only the Officer’s
decision respecting the Applicant’s mother’s medical condition but opinions of
other medical practitioners who examined her mother and came to different
conclusions as to her prognosis. The IAD also considered humanitarian and
compassionate arguments raised by the Applicant as to conditions faced by her
parents and sister in India and the benefits to them should they relocate to
Canada. In a lengthy written decision dated November 13, 2007 the IAD panel
considered all of the Applicant’s arguments and dismissed the appeal.
[3]
In
her submissions to this Court, the Applicant acting on her own behalf, took
issue with a number of findings made by the Officer and IAD panel and
requested, by way of relief from this Court that the Officer’s and IAD Panel’s
decision be quashed and that a visa for permanent residence be granted or
“special relief such as a Tourist Visa for a period of 10 years” be granted to
her Applicant’s mother.
[4]
The
Applicant appears to have a misunderstanding as to the nature of proceedings
such as this. This proceeding is a judicial review of the decision in question
by the IAD panel. The Court may determine, on a standard of correctness,
whether the decision is sound in law and, on a standard of reasonableness
whether the factual findings were reasonable and any discretion vested on the panel
was reasonably exercised. Further, the Court may determine if the panel
accorded procedural fairness to the parties and acted in accordance with
natural justice and the principles set out in the Charter of Rights and
Freedoms. The Court cannot determine a matter not put to the panel for
determination nor can it substitute its views of the facts once it determines
that the panel made its determination reasonably and within its jurisdiction.
The only remedy a Court may provide is to quash the decision and send it back
for a new determination, usually by a different person, perhaps with some
guidance where it believes that the panel made errors.
[5]
Here
the Applicant asks by way of alternate relief for a temporary visa for her
mother. The evidence before me is that no such visa was ever requested, thus
no determination was made in respect of such a matter. I cannot, therefore,
make any ruling in that regard.
[6]
The
Applicant’s mother has been assessed, for the purposes of the Canadian High
Commission in India, by a
medical examiner appointed by the Commission. So long as there is no
compelling reason to question the validity and reasonableness of that opinion,
the Visa Officer cannot disregard that medical opinion (Fei v. Canada (MCI),
[1998] 1 F.C. 274 at para. 41, Gilani v. Canada (MCI), 2003 FCT 153
at para. 17). The standard to be applied by the Officer in considering the
medical opinion is that set out in paragraph 38(1)(c) of the IRPA as to whether
the person “might reasonably be expected to cause excessive
demand on health and social services”.
[7]
I
have looked at the Tribunal Record and have not found the actual medical
opinion by the doctor examining the Applicant on behalf of the High
Commission. I find a Medical Notification on file, page 103 of the Tribunal
Record, which is a report of a Dr. Brian Dobie stating his opinion based on his
review of the medical examination and all reports. The “examination” and “all
reports” are not of record. Dr. Dobie says:
This 64 year old applicant
born on June 11, 1941, has osteoarthritis of both knee joints. The specialist
reports that she is obese and walks with a lurching galt. On examination he
found varus deformities in both knees and pain along the medial joint lines.
Extreme flexion was painful bilaterally. X-rays of the knees show total
collapse of the medical joint space in both knees. Loose bodies are seen as
osteophytes on the articular margins. According to the orthopaedic surgeon at
this state she needs total knee replacement on both knees.
The natural course of this
medical condition is such that it is reasonable to expect a progressive
deterioration requiring specialist management and orthopaedic surgery with
bilateral knee replacement, followed by post operative rehabilitation and
physiotherapy in a hospital or residential setting. This surgery is expensive
and there already exist lengthy waiting periods in Canada for these services.
Based upon my review of the
results of this medical examination and all the reports I have received with
respect to the applicant’s health condition, I conclude that this applicant has
a health condition that might reasonably be expected to cause excessive demand
on health services. Specifically, this health condition might reasonably be
expected to required services, the costs of which would likely exceed the
average Canadian per capita costs over 5 years, and would add to existing
waiting lists and delay or deny the provision of those services to those in
Canada who need and are entitled to them. The applicant is therefore
inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection
Act.
Also has: Hypertension (401)
[8]
The
record at pages 259 and 260 has puzzling hand written notes suggesting that the
doctor who did the actual examination of the Applicant’s mother called the
mother on his mobile phone and asked her to contact him in the evening. No
explanation was offered for this request. A suggestion that the doctor may
have been seeking inducement to influence his opinion was made but this is only
speculative. The IAD panel makes no mention of this incident in its reasons.
It should at least have considered the matter and possibly sought an explanation.
We are left without any evidence as to the actual assessment and reports and
only another doctors opinion of them after a review.
[9]
On
the other hand, the Applicant was invited to provide her own medical opinions
which she did. Dr. Rai, Director of Orthopedics, Joint Replacement Surgeon, at
page 261 of the Record provides an opinion that “patient doesn’t need total
knee replacement with this clinical presentation”. Dr. Umesh, Head and
Orthopedics at Panchula General Hospital, page 262 of the Record says “may
never require total knee replacement”. Dr. Cheema, Chief of Orthopedics, The
Livingston Orthopedics Group, New Jersey at page 264 of the Record says that
she “does not require total knee replacement in the future” Dr. Gandhi, Sports
Medicine at page 263 of the record says “she does not require knee surgery” Dr.
Kapur, Rheumatologist/Osteoporis, Assistant Professor, University of Ottawa at
pages 323-324 of the Record says: “at this point she would not be a candidate
for total knee replacement”.
[10]
The
Applicant’s mother who at the time was about 65 years of age needs to be
considered against the standard as to whether she might reasonably be expected
to cause demands on health and social services. The Immigration and Refugee
Protection Regulations, SOR/2002-227 section 1(1) define “excessive demand”
as factual:
(a) a
demand on health services or social services for which the anticipated costs
would likely exceed average Canadian per capita health services and social
services costs over a period of five consecutive years immediately following
the most recent medical examination required by these Regulations, unless there
is evidence that significant costs are likely to be incurred beyond that
period, in which case the period is no more than 10 consecutive years; or
(b) a
demand on health services or social services that would add to existing waiting
lists and would increase the rate of mortality and morbidity in Canada as a
result of the denial or delay in the provision of those services to Canadian
citizens or permanent residents. ( fardeau excessif )
[11]
Respondent’s
Counsel pointed to page 427 of the Record which provides demographic data from
the Canadian Department of Health as to hip and knee replacements:
Demographic trends
The report found the largest
rate of increase in patients between the ages of 45 and 54. Hip replacements
doubled in this age group over 10 years (from 1,313 in 1994-1995 to 2,664 in
2004-2005). Older Canadians (age 65 and over) continue to make up the majority
of joint replacement patients – representing 65% of hip replacement and 68% of
knee replacement patients in 2004-2005. However, the number of older Canadians
as a proportion of the total number of patients undergoing joint replacement
surgery has decreased from 71% (1994-1995) to 66% (2004-2005 over 10 years, as
more Canadians are getting joint replacements at a younger age.
[12]
Thus
when considering a 65 year old woman it is against the general background in
Canada that people of that age a large number of whom are more prone to need
knee replacements. The fact that this woman has some osteoporosis which in one
undisclosed and possibly suspect medical opinion would require surgery must be
weighed against a number of opinions all disclosed on the record from
specialists in this area that she does not or at least not at present need knee
replacement. This does not appear to have been properly appreciated or
considered by the IAD. Simply to say, as the IAD did in paragraph 10 of its
Reasons that “opinions vary” does not give sufficient weight to the disclosed
opinions of experts against the undisclosed opinion of a single medical doctor.
[13]
Simply
to say that a 65 year old person has osteoporosis which may progress as time
goes by as the IAD said at paragraph 10 of its Reasons does not address the
issue which is, having regard to the provisions of section 38 of IRPA and
section 1(1) of the Regulations and the general conditions in Canada for
persons of that age group:
“Will this Applicant’s mother
taking all the medical evidence fairly into consideration, cause excessive
demands on the health and social services of Canada?”
[14]
I
conclude that the IAD did not reasonably consider the evidence and issues. The
matter must be returned for proper consideration.
[15]
In
addition, the Applicant also raised a number of humanitarian and compassionate
grounds, particularly before the IAD panel. Those grounds were reviewed and
considered by the panel. Those considerations by the panel and its
determination are to be reviewed on a standard of reasonableness (Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paras. 54, 146-149 and 154). Considerable deference should be
given to a panel such as this which has considerable expertise in determining
matters such as this. I find no reviewable error in this respect although I do
find reviewable error as to the first issue, thus this matter must be
reconsidered as a whole.
[16]
Accordingly
the application is allowed. There will be no certification as the matters
raised are factual and peculiar to the circumstances here. There will be no
order as to costs.
JUDGMENT
For the Reasons given:
THIS COURT ORDERS that:
1.
The
application is allowed and the decision of the Immigration Appeal Division
dated November 13, 2007 is set aside;
2.
The
matter is returned to be considered by persons not involved in the decision set
aside;
3.
There
is no question for certification;
4.
There
is no order as to costs.
"Roger
T. Hughes"
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