Federal Court Decisions

Date: 19990317

Docket: IMM-373-98

BETWEEN:

     SHAKILA SHAH

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

McKEOWN J.

1. [1]      The applicant seeks judicial review of the decision of the Immigration Appeal Division (the "IAD") dated January 13, 1998, wherein the IAD determined that the applicant"s appeal made pursuant to subsection 77(3) of the Immigration Act (the "Act") be dismissed.
   

[2]      The issues are whether the medical officers ignored the opinions of the two doctors in coming to their decision and whether the medical officers" finding of excessive demands on Canadian health or social services was based not only on the potential for family support to be disrupted, but also based on the father"s medical condition and the consequences that flow from that medical condition.

[3]      With respect to the issues, the visa officer"s letter of March 17, 1992, stated:

... The evaluation of your medical examination by Health and Welfare medical officers have indicated that you are suffering from:

DIAGNOSIS: CEREBELLAR DEGENERATION

NARRATIVE: You have a progressive neurological disease of the cerebellar system which is expected to deteriorate. Although you are able to feed yourself you require assistance for mobility and other activities of daily living. Should family support be disrupted you will be a candidate for a long term care facility for which there are many Canadians on the waiting list. You are therefore inadmissible under section 19(1)(a)(ii).

[4]      The visa officer further stated:

Your application was also thoroughly reviewed for any humanitarian and compassionate factors that might have mitigated in your favour but nothing was found as you own a house and valuable agricultural land in Pakistan. In addition you are living a normal life with one son and two daughters in Pakistan. In view of the above there is no alternative therefore but to refuse your application for permanent residence in Canada.

[5]      The medical officers and the visa officer had reports of two doctors before them. Dr. Iqbal, a general practitioner, found that the applicant"s father was in a "satisfactory state of health in view of his age; he may have depression, which is manifested by a restriction of activities of daily living". His prognosis was "fair, as a whole". He also referred to "generalized body/muscle weakness: slightly more than grade IV, but less than grade V; walks, stands with support; no history of cerebral vascular disease; generally, examination of the nervous system is within normal limit, keeping his age in mind. Only gross abnormality is slight impairment of coordination." As a result of this report, he was sent to a neurologist, Dr. Malik, who issued a report, stating in part: "he has no weakness, no H/O paralysis of the body, no sensory symptoms or any other neurological symptoms; gentleman of 74 with a healthy look who came to the clinic walking with a support (his walker). When deprived of this support, he walks clumsily on a broad base and could not walk at all on a straight line." Dr. Malik added "No sensory disturbances", and completed his report with "Opinion: Cerebellar degeneration (No family history)".

[6]      The IAD upheld the visa officer"s opinion. The IAD critically noted that "[w]hile questions of inadmissibility are normally dealt with as at the date of the appeal hearing, the exception to this is medical inadmissibility, the applicable date being the date on which the visa officer issued the refusal." The IAD stated the law correctly in that respect. The IAD also noted that the applicant made most of her submissions rebutting the diagnosis of cerebellar degeneration and not the conclusion respecting excessive demands on health or social services, and admonished her for doing so.

[7]      The applicant filed a series of medical reports respecting her father which all postdate the refusal by two or three years. These reports indicate that his condition had not deteriorated. In addition, there was a suggestion that his condition had improved. Furthermore, Dr. Khitab, a Canadian doctor, summarized the medical opinions from 1991 and subsequent ones, on March 19, 1997. He pointed out that in May 1995, there was a normal C.T. scan of the head, and his conclusions were as follows: "There seems to be some agreement in the above reports with regard to the following: a. That Mr. Zaman has some muscle weaknesses; b. That Mr. Zaman has some difficulty in some activities of daily living but manages to function without support from other people; c. That there has been no deterioration in his condition over the preceding few years; d. That he has not required any medication over this period". Dr. Khitab also refers to Dr. Malik"s findings of cerebellar degeneration and notes that "Dr. Malik does not differentiate what Cerebellar Degenerative Disease in particular was affecting Mr. Zaman". He then goes through the causes of cerebellar degenerative disease and points out that none of them are applicable to the applicant.

[8]      The case law sets out that the validity and accuracy of the medical officers" medical diagnosis and prognosis with respect to the identified medical or health condition, which arise directly out of the professional medical expertise of the medical officers, are not open to review or challenge by lay persons. Accordingly, on the first issue, I uphold the IAD"s finding with respect to the medical officers" medical diagnosis and prognosis.

[9]      However, on the second issue, the medical officers" opinion as to excessive demands on health and social services is essentially an administrative decision, and I must see whether it is demonstrated within reason, given the individual circumstances of the prospective immigrant"s medical or health condition. The medical officers" opinion as to excessive demand is open to review and justification before me.

[10]      In Ismaili v. Canada (Minister of Citizenship and Immigration), (1995) 29 Imm.L.R. (2d) 1 (F.C.T.D.), Cullen J. states at p. 15:

... The Court of Appeal has established that the Appeal Division of the Immigration and Refugee Board, when reviewing an adjudicator"s or immigration officer"s decision, has authority to enquire into the reasonableness of the conclusion as to the probable demands on government services.

[11]      At p. 16, Cullen J. continues with a reference to Heald J.A."s decision in Ahir v. Canada (Minister of Employment and Immigration) , (1983) 49 N.R. 185, wherein he stated:

... The statutory scheme requires the adjudicator initially, and, in cases where an appeal lies to the Board, subsequently the Board, to decide whether the "expectation" expressed by the medical officers is "reasonable" having regard to the circumstances of each individual case.

[12]      Cullen J. then adds:

The Court of Appeal has clarified this power of inquiry and directed that a visa officer must also decide whether there is a linkage between the evidence of the medical condition and the issue of whether the applicant might reasonably be expected to cause excessive demands on health or social services.

...

The visa officer " wholly apart from the decision of the medical officers " is obliged to consider whether the applicant"s medical condition would place excessive demands on health or social services. The visa officer, without second-guessing the medical, diagnostic opinion, must consider all of the available evidence.

[13]      In the case at bar, in light of the foregoing, I am satisfied that the IAD did not reasonably consider all of the evidence in deciding whether the applicant"s father would indeed make excessive demands on health or social services. The doctors" reports, which I reviewed at paragraph 7, cast doubt on the question of whether the admission of the applicant"s father to Canada would result in excessive demands on health or social services.

[14]      Consequently, I will allow this application for judicial review. The matter is returned to the IAD to be determined by a differently constituted panel, with the instruction that the IAD determine whether the admission of the applicant"s father to Canada reasonably would result in excessive demands on health or social services.

     William P. McKeown

     JUDGE

OTTAWA, Ontario

March 17, 1999