Date: 20011221
Docket: IMM-3756-00
Neutral citation: 2001 FCT 1420
BETWEEN:
ANJUM PERVEZ
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
[1] This application is for judicial review of a decision of a Visa Officer dated June 16, 2000 (the "Decision"). In the Decision, the Visa Officer stated that the applicant's 10 year old dependent son, Usman, (the "Son") is medically inadmissible pursuant to section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985 c. 1-2, as amended.
[2] The Son is asymptomatic and his parents had no idea that he had a health problem before they applied to come to Canada. Unfortunately, the medical examinations which were conducted as part of the application process revealed that, although he is otherwise healthy, the son has one enlarged and one undersized kidney and, as a result, has deficient renal function and chronic kidney disease.
[3] An expert opinion was sought on the Son's condition and it is contained in four letters from Dr. J.W. Balfe dated September 11 and November 11, 1999, and January 21 and May 23, 2000 (the "Letters"). Dr. Balfe practices Pediatric Nephrology at Toronto's Hospital for Sick Children.
[4] The pertinent part of Dr. Balfe's first letter read as follows:
There is a possibility that he could develop serious renal failure in the future. As far as therapy directed towards protecting kidney function one would suggest a normal protein diet and definitely not a high protein diet. In addition one would prescribe an angiotensin-converting enzyme inhibitor drug to lower proteinuria and protect renal function.
[5] Dr. Balfe's second letter of November 11, 1999 was written to provide a time estimate for the son's development of serious renal failure. The following question was posed: "After reassessment of kidney function, as noted above, regarding time estimate prognosis for development of serious renal failure in the next 5-10 years". In that regard Dr. Balfe wrote:
There is a definite possibility with many kidney diseases, that once the creatinine is < 50 ml/min, the disease will progress. If one could measure the plasma creatinine level on a yearly basis then there is a possibility of projecting when renal failure might actually occur. It would be my impression that serious renal failure would not happen for at least 10 years.
There is current evidence that if one treats patients aggressively with an angiotensin converting enzyme inhibitor such as Enalapril, the renal function will be preserved and the proteinuria will be ameliorated. Consequently, it is hopeful that such therapy would have a protective effect on Usman's renal function.
[6] Dr. Balfe's letter of January 21, 2000 read in part:
The above results are similar to previous results. Again, the creatinine clearance is approximately 50% of normal and he has significant proteinuria. Again, the etiology of his renal failure is uncertain. It appears he has a long standing chronic renal disease. The right kidney is small by ultrasound (outside center) and the left kidney has poor corticomedullary differentiation. There is the likelihood of progression of his renal problems, however I feel serious renal failure is sometime away (5-10 years or more).
[7] In May of 2000, Dr. Balfe reassessed the Son and, regarding his kidney disease, concluded as follows:
Usman's short-term prognosis is excellent. He will need to see a doctor on a yearly basis and have his renal function assessed. His long-term prognosis is less certain. It is possible that his kidney function will become worse over a number of years. There are many studies showing that a common blood pressure medication (Enalapril), when prescribed for patients such as Anjum, can reduce proteinuria and protect kidney function. This medication could be tried on him.
It is not possible to provide an accurate long-term prognosis for Usman. He is currently well and one would expect him to have many years of good health.
[8] The applicant's position is that because Dr. Balfe has said that there is a drug called Enalapril which can "protect" kidney function (the "Drug"), serious or end stage renal failure can be averted and is merely a possibility. This, the applicant asserts, means that the transplant and/or dialysis that the Medical Officer concluded will place excessive demands on our system are unlikely to be required. This view of Dr. Balfe's opinion provides the underpinning for many of the applicant's arguments on this application.
[9] The difficulty is that I do not accept the applicant's understanding of Dr. Balfe's opinion. Dr. Balfe knew why the Son was being assessed and, if the doctor had meant that successful treatment with the Drug could certainly, or would likely, avert end stage renal failure, a clear statement to that effect would appear in the Letters.
[10] In my view, when read together, the Letters indicate that the Son is likely to experience serious renal failure. The only question is when that will occur. Dr. Balfe has said that, if the drug is effective in the Son's case, end stage renal failure will be delayed.
[11] The applicant's counsel argued that, in order to disqualify an applicant, the Medical Officer must conclude that there is a probability, not just a possibility, of excessive demand. Applicant's counsel cited the Medical Officer's report, which concludes that Dr. Balfe "felt there was a significant chance that progression might result in end stage renal disease in the foreseeable future".
[12] The applicant says that the words "significant", "chance", and "might" as used in the Medical Officer's report amount to a possibility while section 19(1)(a)(ii) requires a probability. It reads:
19.(1) Inadmissible persons - No person shall be granted admission who is a member of any of the following classes:
(a) persons, who are suffering from any disease, disorder, disability or other health impairment as a result of the nature, severity or probable duration of which, in the opinion of a medical officer concurred in by at least one other medical officer,
(ii) their admission would cause or might reasonably be expected to cause excessive demand on health or social services;
[my emphasis]
[13] In my view, there is no material difference between the phrases used in the report and in the statute. The words "reasonably" and "significant" both import a meaning beyond possibility.
[14] The applicant also argues that the Medical Officer's report was unreasonable because it considered only the cost element of the excessive demand. However, given the high costs of dialysis and transplant surgery, it is my view that the report was sufficient when it addressed only cost. I should add that, had the Medical Officer addressed the availability of transplant and dialysis services, I am confident that his conclusion about excessive demand would not have changed.
[15] Additionally, given that the Drug will only delay but not avert renal failure, I was not persuaded that the Officer misused the Medical Officer's Handbook or that the "M7" standard it describes was improperly applied to the Son. M7 reads:
Has a condition which would cause excessive demand on health or social services, and which is not likely to respond to treatment. Inadmissible as Section 19(1)(a)(ii) applies.
[16] Lastly, the applicant took issue with a statement in paragraph 12 of the Medical Officer's affidavit of September 29, 2000 in which he described the conclusion in Dr. Balfe's second letter of November 11, 1999 by saying "... [Dr. Balfe] felt that serious renal failure would not occur for at least 10 years if the appropriate therapy did diminish the proteinuria". In fact, Dr. Balfe indicated that, without the Drug, end stage renal failure was at least 10 years away. One would therefore presume that, if the Drug were successful, renal failure would be further in the future. It is therefore reasonable to believe that the Medical Officer's misunderstanding of Dr. Balfe's second letter caused him to believe that renal failure would occur earlier than Dr. Balfe's letter indicated.
[17] However, even though the Medical Officer misunderstood the second letter, I have concluded that the misunderstanding was not material for two reasons. Firstly, because ultimately the Drug was not going to cure the Son's kidney disease and renal failure would occur. Secondly, because Dr. Balfe's third letter provided a revised timetable of a period of five to ten years or more before serious renal failure would occur. This revised estimate meant that the Medical Officer's misunderstanding was immaterial.
Certification
[18] The applicant asked for certification of the following question:
Where an applicant has been refused on the basis of section 19(1)(a)(ii) of the Immigration Act but expert medical evidence indicates that an accurate prognosis is not possible and indeed states that treatment exists which could very well be protective (i.e. shielding from a medical problem), do the medical officer and visa officer commit a priori errors by nevertheless finding that the applicant is medically inadmissible?
[19] In view of the fact that section 19(1)(a)(ii) does not include a time limit, and in view of my conclusion that serious renal failure is inevitable, it is my view that this question could not be dispositive of an appeal. Certification will therefore be denied.
Conclusion
[20] For all these reasons, this application for judicial review will be dismissed.
"Sandra J. Simpson"
JUDGE
Toronto, Ontario
December 21, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3756-00
STYLE OF CAUSE: ANJUM PERVEZ
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
(Respondent)
DATE OF HEARING: MONDAY, NOVEMBER 26, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SIMPSON J.
DATED: FRIDAY, DECEMBER 21, 2001
APPEARANCES: Mr. Ravi Jain
For the Applicant
Mr. Martin E. Anderson
For the Respondent
SOLICITORS OF RECORD: Green and Spiegel
Barristers & Solicitors
121 King Street West
Suite 2200
P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 2001221
Docket: IMM-3756-00
Between:
ANJUM PERVEZ
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
(Respondent)
REASONS FOR ORDER
Date: 20011221
Docket: IMM-3756-00
Toronto, Ontario, Friday, the 21st day of December, 2001
PRESENT: THE HONOURABLE MADAM JUSTICE SIMPSON
BETWEEN:
ANJUM PERVEZ
(Applicant)
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
ORDER
UPON the applicant's application for judicial review of a decision of a Visa Officer dated June 16, 2000 in which the applicant's dependent son, Usman, was found to be medically inadmissible pursuant to section 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985 c.1-2, as amended;
AND UPON reading the material filed by both parties;
AND UPON hearing the submissions made by counsel for both parties in Toronto on November 26, 2001;
AND UPON being advised that the applicant posed a question for certification (the "Question");
NOW THEREFORE THIS COURT ORDERS that, for the reasons issued this day:
21. The Question is not certified.
22. The application for judicial review is hereby dismissed.
"Sandra J. Simpson"
JUDGE