Docket: IMM-7309-14
Citation:
2016 FC 53
Ottawa, Ontario, January 19, 2016
PRESENT: The
Honourable Mr. Justice Annis
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BETWEEN:
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OLANREWAJU,
OYERINDE
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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]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision by an immigration officer [the
Officer] from the High Commission of Canada in the United Kingdom finding the
Applicant inadmissible for permanent residence on health grounds pursuant to
subsection 38(1)(c) of the Act because he suffers from Hepatitis B Virus
[HBV] which would require treatment that may reasonably be expected to cause
excessive demand on Canadian health services.
[2]
The Applicant is a medical doctor and citizen of
the United Kingdom and Nigeria. He applied for permanent residence in Canada
under the skilled worker scheme. The sole issue raised is whether the Officer
reasonably determined, based on the evidence, that the Applicant was
inadmissible because he suffers from HBV which would require treatment that may
reasonably be expected to cause excessive demand on Canadian health services.
[3]
The Applicant submits that the Officer erred by
failing to conduct an individualized assessment of the Applicant’s medical
condition, and in particular in misreading and misunderstanding the medical
evidence demonstrating that the Applicant’s health condition does not
clinically require treatment, and that any treatment the Applicant is
undergoing is optional.
[4]
The Applicant presented the Court with
significant new evidence not before the Officer when his application was
rejected. The Applicant did not attempt to rely upon the evidence relating to
the provision and costs of the drug Tenofovir and other medical procedures used
in the treatment of patients suffering from HBV described in the Ontario
Ministry of Health and Long-Term Care’s documents.
[5]
However, the Applicant also presented the Court
with a medical report dated February 24, 2014, of Dr. Al-Chalabi, a physician
in the United Kingdom. The report was not in the Certified Tribunal Record
[CTR]. The Applicant submitted that the Medical Officer’s Rationale [MOF
Rationale] of April 25, 2014, which was the preliminary basis for rejecting his
application, failed to consider Dr. Al-Chalabi’s opinion that, although he was
on an antiviral therapy to reduce his viral load, “from
the point of view of his health this was not indicated as his disease is very
mild.”
[6]
The Medical Officer reported as follows:
He was referred for a Consultant
Hepatologist evaluation, which confirmed that the applicant met the criteria
for anti-viral treatment. Recent liver biopsy showed evidence of
inflammatory processes and fibrosis. Mr. Olanrewaju was started on antiviral
treatment to reduce his viral load (reduce the quantity of the Hepatitis B
virus in the blood). The applicant qualified for anti-viral treatment with an
objective to eradicate (eliminate) the Hepatitis B virus and thus prevent the
disease progression. Medical treatment with oral medication daily has been
commenced; close specialist follow-up was recommended.
[Emphasis added]
[7]
Because of the apparent discrepancy between Dr.
Al-Chalabi’s report indicating that treatment was not indicated (necessary) and
the MOF Rationale that the Applicant met the criteria for antiviral treatment,
a discussion ensued at the judicial review hearing concerning the foundation
for the Medical Officer’s conclusion that the Applicant met the criteria for
antiviral treatment, if not from the February 24, 2014 report of Dr.
Al-Chalabi. The CTR contained no medical documents in support of the MOF
Rationale.
[8]
The hearing was adjourned in order to determine
whether Dr. Al-Chalabi’s report was relied upon by the Medical Officer. The
Respondent reported back that the letter was before the Medical Officer, as was
that of a Dr. Aung who conducted a medical examination on behalf of Citizenship
and Immigration. Dr. Aung’s report was also not contained in the CTR. After
considering the matter further, the Court concludes that the basis for the
Medical Officer’s Rationale was not determinative of the case, as the remaining
evidence is not in dispute and is sufficient to conclude the matter.
[9]
The application must be rejected because the
Applicant has not met his onus of demonstrating that the treatment of his HBV
condition in Canada may not reasonably be expected to cause excessive demand on
Canadian health services.
[10]
The MOF Rationale in the fairness letter indicated
that the Applicant would require review and close follow-up by medical
personnel and that he would likely be given a course of antiviral drug
treatment, the cost of which for the most part would be provided at public
expense. These costs were estimated to exceed the average Canadian per capita
health costs over five years (i.e. $6,285 per year), rendering him
ineligible for admission.
[11]
The Applicant responded to the fairness letter
with a further report from Dr. Al-Chalabi dated June 3, 2014, (which made no
mention of his earlier report). Dr. Al-Chalabi confirmed that the Applicant was
suffering from a “mild disease” and “that the Tenofovir
was started not because it was clinically indicated but purely because Mr.
Oyerinde Olanrewaju is a medical doctor.” There is no indication in the
record whether the Applicant was paying for this treatment, or if it was being
provided by the State.
[12]
The Applicant also included a letter from a
United Kingdom medical physician, Dr. Jude, a gastroenterologist/hepatologist.
Dr. Jude indicated that he “does need long term follow
up with renal and liver function tests approximately every six months and an
ultrasound scan approximately every twelve months.” He indicated as well
that “negative patients like him, with low viral loads,
carry an excellent prognosis with increased possibility of Hepatitis B surface
antigen clearance.”
[13]
In his reply to the fairness letter, the
Applicant indicated that it was his intention to continue the Tenofovir
treatment in Canada. He indicated that the total costs for the drug would be
$632 per year, i.e. $52.67 per month. He acknowledged that he would
require blood tests every six to twelve months, an annual liver ultrasound scan
and an annual specialist clinical review until he has maintained a sustained
viral suppression to satisfactory levels. No evidence corroborating these
evaluations was provided. He further indicated that he was willing to pay for
all his medications and would take up private health insurance at his own
personal expense to ensure that the Canadian taxpayer would not pay for the
cost of treating his pre-existing health condition.
[14]
In the follow-up letter, the Applicant did not
provide evidence that he would be ineligible for treatment for his HBV
condition under government-provided medical services regimes, as was his onus: Chaudhry
v Canada (Minister of Citizenship and Immigration), 2011 FC 22.
[15]
The Officer noted in his decision that the total
costs for the Tenofovir treatment would be $6,739 annually ($561 per month),
which exceed the Canadian annual average cost, even without factoring in the
costs for testing and his medical visits. The Officer also pointed out that the
Applicant failed to identify any specific medical insurance company in Canada
that would cover the treatment. The only policy provided by the Applicant did
not indicate that the required coverage would be included. Furthermore, no plan
was provided by the Applicant as to how he would pay for the cost of the
unspecified long-term treatment for the disease required in Canada: Jafarian
v Canada (Minister of Citizenship and Immigration), 2010 FC 40.
[16]
The Court is satisfied that the Officer’s
decision that the Applicant’s HBV disease would require treatment that may
reasonably be expected to cause excessive demand on Canadian health services is
reasonable as falling within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law and supported by reasons that
are justified, intelligible and transparent: Dunsmuir v New Brunswick, 2008
SCC 9 at paragraph 48.
[17]
For all the foregoing reasons, the application
is dismissed. No questions are certified for appeal.
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