Date: 19990511
Docket: IMM-3989-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
GULSHAN MAHEY
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The applicant challenges by way of judicial review the decision of the Appeal Division of the Immigration and Refugee Board (the "IAD"), dated 20 July 1998, which allowed the respondent"s appeal from a visa officer"s refusal of the applications for permanent residence made by the respondent"s father, mother, sister, and brother. The father"s application had been denied on the ground that he was medically inadmissible pursuant to s.19(1)(a )(ii) of the Immigration Act R.S.C. 1985, c. I-2 (the "Act"). That section provides as follows:
19(1) 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 demands on health or social services.
Background
[2] In September 1994, the respondent sought to sponsor his father, mother, sister, and brother, who are all citizens of India, as permanent. On 27 February 1996, the respondent"s father was informed by a visa officer that his application for permanent residency was refused on the grounds of medical inadmissibility set out in s.19(1)(a )(ii) of the Act.
[3] The visa officer"s refusal was based on the medical notification, dated 28 September 1995, made by Dr. Pierre Boucher, and concurred in by Dr. J. Saint-Germain. The narrative portion reads as follows:
This 42 year [old] applicant has coronary artery disease with inducible ischaemia at moderate work load. He suffered a myochardial infarction in August 1995. He also has a sick sinus syndrome for which he needs permanent pacemaker implantation. This applicant requires extensive cardiac investigation and most likely cardiac surgery in addition to a pacemaker. This will place excessive demand on Canadian Medical services making him inadmissible under section 19(1)(a)(ii) of [sic] the Immigration Act.
[Applicant"s Application Record ("AR"), p. 17]
[4] In fact, at the time the respondent"s father was examined he was 52 years old, not 42 years old as cited in the notification. This error is the basis of a principal finding of the IAD on the appeal of the visa officer"s decision.
The IAD"s Decision
[5] With respect to the importance of the mistake as to age, the IAD found as follows:
| It may be that the age as stated in the medical narrative is a typographical error but we do not know this to be the case. In short, it is a matter of speculation as to whether the medical officer, and the medical officer who concurred with him, believed that Harimohan Singh was 42 or 52 at the time he reached the conclusions he did respecting his prognosis. The principal applicant"s medical file is found in Exhibit A-1 under cover letter dated April 17, 1998. On the first document found in the medical file, Harimohan Singh"s correct date of birth is indicated. However, on page 4 of these documents, the handwritten notes of the physician who completed it also states that the principal applicant is 42 years of age. |
| These notes appear to provide the substance of the content of the medical narrative, which is found on the next page of these documents. The report on which the medical officer"s determination was made appears to have been done by a specialist in Chandigarh, India. The only reasonable inference to draw from these facts is that the error in the principal applicant"s age began with the medical report made in India. This gives some reason to believe that the medial officer, and the one who concurred with him, both believed Harimohan Singh was 42 years of age at the time he was examined in India. |
| The relevance of this fact is that it makes it obvious that there is a reasonable possibility that the conclusions reached in the narrative were based on an erroneous and highly probative fact in assisting the medical officers to make the determinations required of them. Unless we can be sure on a balance of probabilities that the medical officer, and the one who concurred with him, were aware that the principal applicant was 52 and not 42, we cannot rely on his determinations. I cannot rely on his determinations unless I can be satisfied on a balance of probabilities that the medical officers were aware of Harimohan Singh"s correct age. |
| On the totality of the evidence on this issue, I have to conclude that I am not satisfied on a balance of probabilities that the determinations reached and concurred in were made with knowledge of Harimohan Singh"s correct age. The fact that the medical narrative was clearly based on the specialist"s report from India tips the balance in favour of concluding that, while it is possible the medical officers were aware Harimohan Singh was 52 years of age, it is more probable than not that they were not aware of this. |
Having reached this conclusion, it is unnecessary to make determinations on the other legal arguments or on whether compassionate or humanitarian factors exist in this case which warrant exercise of the Appeal Division"s discretionary jurisdiction to grant special relief.
[AR, pp. 8-10]
Accordingly, the IAD found the visa officer"s refusal invalid in law and allowed the appeal.
Applicant"s Position
[6] The applicant submits that the IAD is required to inquire into the reasonableness of the conclusions of the medical officers as to the probable demands on health or social services that would result from the admission of the applicant, and relies on Deol v. Canada (MEI) (1992), 145 N.R. 156 (F.C.A.) in support of this contention. By failing to do so, the applicant argues, the IAD erred in law.
[7] The applicant contends that the IAD"s finding infers that the age of the respondent"s father was the critical factor in the medical officer"s conclusions, but that there was no evidence before it upon which it could draw such an inference. The applicant argues that the evidence established that it was the father"s condition , as opposed to his age, which led to the impugned conclusion. In support of this, the applicant points to paragraph 6 of the statutory declaration of Dr. Boucher, dated 16 March 1998, which states:
Excessive demand in this case is related to the fact that the applicant"s condition is expected to deteriorate and will likely require extensive cardiac investigation and will likely require cardiac surgery. This will cause excessive demands on health services. [AR, p. 19]
[8] The applicant argues that the IAD"s decision is patently unreasonable based on all of the evidence before it, which corroborated the medical officer"s diagnosis and prognosis.
Respondent"s Position
[9] The respondent maintains that the IAD"s finding that the medical officer"s decision was based on an erroneous finding of fact indicates that the IAD did inquire into the reasonableness of the decision. The respondent relies on Ahir v. Canada (MEI) (1983), 49 N.R. 185 (F.C.A.), in which the Court states,
| In this case, because the medical officers operated on an erroneous basis and used improper criteria, the Adjudicator was certainly entitled to conclude, as she did, that the expectation herein expressed by them was not reasonable. |
[10] The respondent argues that, similarly, the IAD determined that on a balance of probabilities the medical officers had based their conclusion on an erroneous and highly probative fact, thus rendering their opinion unreasonable. The respondent argues that the father"s age was not the most critical factor, but rather was a material factor, relevant to the medical prognosis.
Analysis
[11] Under s.19(1)(a)(ii), a medical officer forms a medical opinion, which is concurred in by at least one other medical officer, as to whether the applicant"s medical condition would cause, or might reasonably be expected to cause, excessive demands on Canada"s health or social services.
[12] An adjudicator or a visa officer has no authority to review the diagnosis of the medical officer. However, the adjudicator or visa officer, as the case may be, may intervene when the opinion is based on an obvious mistake of fact, is incoherent or inconsistent, or where cogent evidence was not considered: Ajanee v. Canada (MCI) (1996), 110 F.T.R. 172 (T.D.); Ahir v. Canada (MEI) (1983); Ismaili v. Canada (MCI) (1995), 29 Imm. L.R. (2d) 1; and Gao v. Canada (MEI) (1993), 61 F.T.R. 65 (T.D.). Thus, an adjudicator or a visa officer must consider the reasonableness of the medical officer"s opinion, and determine whether any errors were made in its formulation, based on the materials in the record before the medical officers.
[13] Mr. Justice Dubé"s comments in Gao are instructive:
| The governing principle arising from this body of jurisprudence is that reviewing or appellate courts are not competent to make findings of fact relating to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers" opinion is reasonable in the circumstances of the case. The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in s. 22 of the Regulations. |
| [Footnotes omitted] |
[14] I agree with the respondent"s argument that a person"s age is highly relevant to a determination of that person"s state of health, and as to whether that state of health might cause, or might reasonably be expected to cause, excessive demand on health or social services. Therefore, I find that the IAD properly discharged its duty of inquiring into the reasonableness of the medical opinion, and in so doing, made no reviewable error in concluding that the factual error respecting age rendered the opinion unreliable.
[15] Accordingly, this application is dismissed.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
May 11, 1999
[16]
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 19990511
Docket: IMM-3989-98
BETWEEN:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
GULSHAN MAHEY
Respondent
REASONS FOR ORDER
AND ORDER
[17]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3989-98
STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION
v. GULSHAN MAHEY
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 10, 1999
REASONS FOR ORDER OF CAMPBELL, J.:
DATED: May 11, 1999
APPEARANCES:
Mr. B. Hardstaff for the Applicant
Mr. P. Wong for the Respondent
SOLICITORS OF RECORD:
George W. Thomson
Deputy Attorney General
of Canada
Ottawa, Ontario for the Applicant
Major Caron
Calgary, Alberta for the Respondent