Docket: IMM-4335-15
Citation:
2016 FC 438
Ottawa, Ontario, April 20, 2016
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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RENATA
MUZEKA-HARASIM
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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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JUDGMENT AND REASONS
[1]
The applicant seeks judicial review of a
decision of the Immigration Appeal Division [IAD] of the Immigration and
Refugee Board upholding an immigration officer’s decision to deny permanent
resident visas to her parents. The officer denied the visas after finding that
the applicant’s father was medically inadmissible to Canada.
[2]
On January 17, 2007, the applicant sponsored her
parents. On May 16, 2011, an immigration officer informed the parents that a
medical officer had diagnosed the father with a heart condition that might
reasonably be expected to cause excessive demand on health services, thereby
triggering the father’s medical inadmissibility under paragraph 38(1)(c) of the
Immigration and Refugee Protection Act, SC 2001, c 27. The officer also
noted that the mother may be inadmissible under paragraph 42(1)(a) of the Act
due to the father’s inadmissibility. The officer stated that:
Before I make my
final decision, you may submit additional information or documents relating to
the above medical condition, diagnosis or opinion. You may also submit any
information addressing the issue of excessive demand if it applies to your case.
[3]
On March 25, 2013, a different immigration
officer informed the parents that they may not meet the requirements to immigrate
to Canada because the father had been diagnosed with Ischemic Cardiomyopathy.
The letter described this condition as:
[A] common and
largely irreversible form of heart muscle disease and cause of the clinical
syndrome of chronic heart failure. Chronic heart failure is a pathological
state in which the heart, via an abnormality of the cardiac function, fails to
pump blood at a rate commensurate with the body tissues requirements. This is
a chronic, progressive condition and its natural course is of clinical
deterioration causing circulatory failure and leading to severe organ disorder
and insufficiency.
The letter concluded that:
If admitted to
Canada, [the father] will likely continue to require regular cardiologist
review and follow-up and will likely require repeated hospital admissions for
further investigations and treatment to deal with anticipated episodes of
exacerbation of the heart failure. In addition, he will likely be placed on a
cardiac transplant waiting list and receive a heart transplant. Based upon a
review of the results of this client’s immigration medical examination and all
reports received with respect to this individual’s health condition, I conclude
that this client has a health condition (Ischemic Cardiomyopathy) that might reasonably
be expected to cause excessive demand on Canadian health services.
…
In view of the above mentioned health
related service requirements, admission of this client will likely create an
excessive demand on Canadian health services (on both cost and displacement
basis) making him inadmissible under section 38(1)(c) of the Immigration and
Refugee Protection Act.
[4]
Once again, the officer provided the parents
with an opportunity to submit additional information prior to a final
decision. This additional information was received on August 12, 2013, and on
September 19, 2013, the parents received a letter from a medical officer
entitled “procedural fairness.” The letter
acknowledged receipt of several documents from the parents, including documents
related to the father’s heart condition. The medical officer stated that “[i]t is my opinion that the new material does not modify the
assessment of medical inadmissibility.”
[5]
On September 30, 2013, the parents received a
letter finding the father to be medically inadmissible to Canada on account of
his Ischemic Cardiomyopathy. The mother was found inadmissible on account of
the father’s inadmissibility. Due to their inadmissibility, the parents’ visas
were denied, pursuant to subsection 11(1) of the Act.
[6]
The IAD upheld the officer’s decision. It held
that the test for medical inadmissibility under paragraph 38(1)(c) of the Act
is whether the applicant’s health condition might reasonably be expected to
cause excessive demand on health or social services. The IAD emphasized that “[t]he operative word in paragraph 38(1)(c) of IRPA is might
reasonably be expected to cause excessive demand on health or social services not
will or would cause excessive demand” [emphasis
in the original].
[7]
The IAD applied this test to the medical
evidence before it, including new evidence contained within a letter from Dr.
Michael McDonald, dated May 8, 2014. In his letter, Dr. McDonald states that:
Based on the medical
records available, there is no suggestion of a manifest heart failure
syndrome. [The father] would be best characterized as having structural heart
disease without heart failure, also known as American Heart Association Stage B
disease. This distinction is critical because it relates to prognosis.
Patients with stage B disease are at lower risk of death and hospitalization
than patients with persistent heart failure symptoms (known as stage C
disease). I would also question the diagnosis of ischemic cardiomyopathy in
this case. His angiogram did not show a significant burden of coronary artery
disease and he only required one vessel to be bypassed at the time of his valve
surgery.
[8]
The IAD gave little weight to Dr. McDonald’s
alternative medical assessment for three reasons. First, it held that Dr.
McDonald applied the wrong test for medical inadmissibility when he wrote that “I have been asked to provide an opinion regarding [the
father’s] cardiovascular condition and specifically comment on whether this
individual would create excessive demand on Canadian health services”
[emphasis in IAD Decision]. As noted above, the IAD held that the correct test
is whether the father’s condition might reasonably be expected to
create excessive demand. Second, the IAD held that, in any case, it was not
qualified, or permitted, to depart from the medical officer’s diagnosis
regarding the father’s condition. Finally, while the IAD was permitted to
review whether the father’s condition would impose an excessive demand on
Canadian health and social services, Dr. McDonald’s letter failed to adequately
address this issue.
[9]
After considering the rest of the evidence, the
IAD concluded that the officer’s decision was correct. It held that the
medical officer’s opinion, upon which the officer’s decision was based, was the
“most complete and comprehensive with respect to the
ground of refusal and inadmissibility and that the applicant’s current medical
condition might reasonably be expected to cause excessive demand on health and
social services.”
[10]
Finally, the IAD held that there were not sufficient
humanitarian and compassionate grounds to warrant granting the parents
permanent residence, notwithstanding their inadmissibility. The IAD
acknowledged that the applicant is financially well-off and that she offered to
cover the costs of her father’s treatment. However, it noted that such a
promise is unenforceable. The IAD also acknowledged that, save for one of the
mother’s brothers, the parents had no close family in Bosnia. However, it held
that the parents did have neighbours and friends in Bosnia, and were relatively
close to their siblings, despite not living close together. Finally, the IAD
considered the impact on the applicant’s children (the parents’ grandchildren)
of denying the parents permanent residence. The IAD concluded that, although
the parents were close with their grandchildren, they would be able to visit
and speak with them often, even if they were prevented from moving to Canada.
[11]
The applicant submits that the IAD misapplied
the test for medical inadmissibility, and mischaracterized its role in
reviewing new medical evidence. Both of these issues relate to the new medical
evidence provided in the letter from Dr. McDonald.
[12]
The applicant claims that these issues should be
reviewed on a standard of correctness. However, in my view, they both involve
questions of mixed fact and law and/or turn on the interpretation of the IAD’s
home statute. They should therefore be reviewed on a standard of
reasonableness: British Columbia (Securities Commission) v McLean, 2013
SCC 67, [2013] 3 S.C.R. 895 at para 21.
[13]
The applicant urges the Court to find that the
IAD erred when it faulted Dr. McDonald for stating in his letter that “I have been asked to provide an opinion regarding [the
father’s] cardiovascular condition and specifically comment on whether this
individual would create excessive demand on Canadian health
services.”
[14]
The IAD draws a distinction between the phrases “would cause excessive demand” and “might reasonably be expected to cause excessive demand,”
and faults Dr. McDonald for applying the “would cause”
test, rather than the “might reasonably be expected to
cause” test. However, as the Supreme Court held in Hilewitz v Canada
(Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 at
para 58-60 [Hilewitz] , this is a distinction without a difference. Hilewitz
was decided pursuant to section 19(1)(a)(ii) of the Immigration Act,
which denied admission to any person whose health condition “would cause or might reasonably be expected to cause
excessive demands on health or social services” [emphasis added].
However, the Court also explicitly considered the language in paragraph
38(1)(c) of the (then) newly enacted Immigration and Refugee Protection Act:
The clear legislative threshold [under section 19(1)(a)(ii) of the Immigration
Act] provides that to be denied admission, the individual’s medical
condition “would” or “might reasonably be expected” to result in an excessive
public burden. The threshold is reasonable probability, not remote
possibility. It should be more likely than not, based on a family’s
circumstances, that the contingencies will materialize. See Hiramen v.
Minister of Employment and Immigration (1986), 65 N.R. 67 (F.C.A.), and Badwal
v. Canada (Minister of Employment and Immigration) (1989), 64 D.L.R. (4th)
561 (F.C.A.), both by MacGuigan J.A.
The same analysis is applicable to the new Immigration
and Refugee Protection Act, which replaced most of the Immigration Act,
including s. 19. Medical inadmissibility, as previously stated, is now determined
under s. 38(1)(c) of the Immigration and Refugee Protection Act, which
states:
38. (1)
A foreign national is inadmissible on health grounds if their health condition
…
(c) might reasonably be expected to
cause excessive demand on health or social services.
Under this new provision, health
impairments need no longer be those that “would cause or might reasonably be
expected to cause” excessive demands. Only those that “might reasonably be
expected to cause” them are relevant. I see no real significance to the
omission of the words “would cause”. The wording
is sufficiently similar to preserve the requirement that any anticipated
burdens on the public purse be tethered to the realities, not the
possibilities, of applicants’ circumstances, including the extent of their
families’ willingness and ability to contribute time and resources [emphasis
added].
[15]
Given that the “would
cause” test is more or less the same as the “might
reasonably be expected to cause” test, I find that the IAD was
unreasonable to fault Dr. McDonald for using the former test rather than the
latter.
[16]
Does this affect the overall reasonableness of
the IAD’s decision?
[17]
As noted above, the IAD gave two other reasons
for placing little weight on Dr. McDonald’s letter: (1) that the IAD was not
allowed to depart from the medical officer’s diagnosis, and (2) that Dr.
McDonald had failed to adequately address the issue of excessive demand. These
findings appear to have been made in the alternative to the IAD’s findings
about the test for excessive demand. Therefore, I find that the IAD’s
conclusion is not affected by its failure to properly apply Hilewitz.
[18]
The applicant claims that the IAD erred when it
held that it was not allowed to depart from the medical officer’s diagnosis.
Thus the applicant states that “the IAD can review
expert evidence from medical experts at the de novo hearing stage that
demonstrates that CIC’s medical findings were erroneous.” I do not
agree for this is contrary to the Federal Court of Appeal’s holding in Jiwanpuri
v Canada (Minister of Employment & Immigration), [1990] FCJ No 443, 109
NR 293 [Jiwanpuri] according to which, at para 8:
The members of the [IAD] do not have the
expertise required to question the correctness of the medical diagnosis reached
by the officers. In fact, I am of the view that, even with the help of medical
witnesses, it is not the function of the Board to do so. The Board is not
expected to make a choice between the written opinion of the medical officers
and that of other doctors as to the diagnosis of a medical condition suffered
by an applicant. [emphasis added]
[19]
The applicant cites two cases in support of its
position that, notwithstanding Jiwanpuri, the IAD was obliged to
consider whether the medical officer’s diagnosis was reasonable, in light of
Dr. McDonald’s letter. The first case, Dhanjle v Canada (Minister of
Employment & Immigration) (1989), 9 Imm LR (2d) 308, is an IAD decision
in which the Board uses expert medical evidence to depart from a medical
officer’s diagnosis. Although this case is on point, it precedes Jiwanpuri
and so provides no guidance as to the present state of the law. The second
case, Canada (Minister of Citizenship & Immigration) v Abdul, 2009
FC 967, [2009] FCJ No 1178, is a Federal Court decision in which the Court
finds that the IAD has jurisdiction to consider errors of law, fact, and mixed
fact and law, and can do so in light of new evidence that was not before the
officer. This case is not on point because, although it reaffirms that the IAD
can consider new evidence (which is not in dispute), it does not say that the
IAD can rely on that new evidence to depart from a medical officer’s diagnosis.
[20]
The upshot of Jiwanpuri is that, although
it was not open to the IAD to revisit the medical officer’s diagnosis, it could
consider whether the health condition specified in that diagnosis might
reasonably be expected to cause excessive demand on health or social services,
in light of Dr. McDonald’s new evidence (see also Deol v Canada (Minister of
Employment & Immigration), [1992] FCJ No 1072, 145 NR 156 at paras
5-7). The IAD did, in fact, consider this issue, and held that Dr. McDonald
had failed to “sufficiently speak to the issue of
excessive demand of medical and social services.” Furthermore, even if Dr.
McDonald had adequately addressed the issue of “excessive
demand,” his findings on this point would be tainted by the fact that
they are based on an alternative diagnosis of the father’s health condition,
which was not accepted by the IAD.
[21]
Accordingly, this application must be dismissed.
[22]
The applicant asked the Court to certify the
following question as being one of general importance: “What
is the jurisdiction of the IAD when dealing with conflicting medical evidence
in a medical inadmissibility appeal?”
[23]
The respondent submits that the proposed
question does not meet the test for certification set out in Liyanagamage v
Canada (Minister of Citizenship and Immigration) (1994), 176 NR 4, [1994]
FCJ No 1637 at paras 4-6. It submits that the “jurisdiction”
of the IAD to consider differing medical diagnosis has been dealt with in Jiwanpuri,
and there is no conflict in jurisprudence requiring resolution by the Court of
Appeal.
[24]
The applicant submits that the Federal Court of
Appeal in Canada (Minister of Citizenship and Immigration) v Singh, 2016
FCA 96 [Singh], has recognized that the treatment of new evidence before
an administrative appeal tribunal that was not presented before the lower-level
tribunal is a serious question of general importance. With the greatest of
respect to counsel, Singh on its facts is totally distinguishable from
this case. Moreover, there is nothing in Singh that would override the
Federal Court’s previous jurisprudence in Jiwanpuri. Accordingly, the
proposed question is not appropriate for certification.
[25]
As an aside, I note that the record discloses
that, after the respondent received the applicant’s submissions in relation to
the IAD hearing, it forwarded the attached medical evidence, including Dr.
McDonald’s letter, to a medical officer. The medical officer concluded that
the new evidence could modify the father’s medical assessment, and
recommended that a new medical assessment be conducted. The respondent offered
to conduct a new medical assessment if the applicant withdrew her appeal. The
applicant rejected this offer, and counteroffered that the respondent should
consent to her appeal. The respondent declined to do so.
[26]
The proposed resolution would have allowed for the
medical diagnosis to be reconsidered at the appropriate level – that of medical
doctors and may have resulted in a changed diagnosis that could have resulted
in a different decision on the visa application.
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