Date: 20030212
Docket: IMM-4693-01
Neutral citation: 2003 FCT 153
Toronto, Ontario, Wednesday, the 12th day of February, 2003
Present: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision of visa officer H. Michaud (the "visa officer") of the Canadian High Commission in Nairobi, Kenya, dated September 13, 2001, wherein the visa officer refused the Applicant's application for permanent residence on the grounds that she was medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2.
Background
[2] The Applicant, Nasimbanu Gilani, is a female citizen of Kenya. She applied for permanent residence in Canada on February 25, 1998, listing her husband and their three sons as accompanying dependants.
[3] The Applicant is a breast cancer survivor. She submitted various medical documents to the Canadian High Commission in Nairobi, including her IMM 1017 Medical Report for Canadian Immigration and a brief medical history written by her oncologist, Dr. R.R. Chauhan, on April 6, 1999. After outlining the development of the Applicant's cancer and the treatments that she underwent, Dr. Chauhan concluded that "[f]ollowup physical examination, total body bone scan and CT Scan of the thorax done on 27th March 1999 revealed stable disease with no signs of new metastasis. She will require regular followup every three months."
[4] On April 21, 1999, medical officer Dr. Jeremy Brown formed the opinion that the Applicant was medically inadmissible to Canada because her metastatic breast disease was likely to create an excessive demand on health care services. On May 5, 1999, medical officer Dr. J. Saint-Germain concurred in this opinion.
[5] On May 12, 1999, the Applicant received the fairness letter from Second Secretary M. Dupuis. This letter advised her that a Medical Notification had been received indicating that she suffers from metastatic breast cancer, which, in the opinion of the medical officer, rendered her inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act because she was likely to create an excessive demand on Canadian health services. The fairness letter invited the Applicant to "respond to the description of your medical condition with new medical information of your own."
[6] In response to this letter, the Applicant submitted nine pages of additional material, including a letter written by the Applicant, a letter from her husband, her Bio-Data, information regarding her speaking engagement at the World Conference on Breast Cancer in Ottawa, information regarding her health coverage and a medical report from Dr. Chauhan confirming the diagnosis of metastatic cancer. Both Dr. Brown and Dr. Saint-Germain were of the opinion that this additional information was not sufficient to alter the assessment of medical inadmissibility.
[7] According to her Affidavit, the visa officer reviewed the Medical Notification in light of all the information that she had received and reviewed concerning the Applicant. She also confirmed with Dr. Hindle, a medical officer at the Canadian High Commission in Nairobi, that metastatic breast cancer was still rated as M7 and rendered an individual medically inadmissible.
[8] By letter dated September 13, 2001, the visa officer informed the Applicant of her decision to refuse the application for permanent residence because the Applicant came within the inadmissible class of persons in subparagraph 19(1)(a) of the Immigration Act, and was expected to place excessive demand on Canada's health care system.
Applicant's Submissions
[9] In the Applicant's submission, medical officers have a duty to assess the circumstances of each individual in his or her uniqueness. In Poste v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1805 (T.D.) (QL), Cullen J. held that a visa officer must assess all of the circumstances of the case and must not simply accept a medical officer's determination of medical inadmissibility as the basis for rejecting an application for permanent residence. The Applicant submitted that the underlying reason for the refusal of her application for permanent residence was the fact that the Applicant's cancer had metastised. According to the Medical Officer's Handbook, the Applicant would consequently be permanently assessed as M7, which is the highest level of inadmissibility. As a result, the medical officer had no discretion to consider the particular and unique condition of the Applicant, and the visa officer erred in relying on the medical officer's assessment.
[10] The Applicant also submitted that the fairness letter breached procedural fairness because it did not invite the Applicant to make submissions on the issue of excessive demand in Canada. In support of this submission, the Applicant relied on two decisions of this Court: Khan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 793 (T.D.) (QL) and Wong v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 24 (T.D.) (QL).
Respondent's Submissions
[11] The Respondent submitted that there is no obligation on medical officers to assess cases of inadmissibility due to the requirement for medical services in their uniqueness. However, if this obligation does exist, the medical notification indicates that the medical officer considered the individual circumstances of the Applicant in making his medical inadmissibility determination.
[12] The Respondent argued that the duty of fairness does not require that visa officers expressly invite applicants to make further submissions on both the medical and excessive demand issues. In support of this submission, the Respondent relied on the decision of the Federal Court of Appeal in Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413, which overturned the decision of the Trial Division relied upon by the Applicant.
[13] Further, the Respondent referred to the case of Deol v. Canada (Minister of Citizenship and Immigration) 2002 FCA 271, [2002] F.C.J. No. 949 (QL) as standing for the proposition that costs alone can be the basis for rejection of an application.
[14] Finally, the Respondent noted that the medical narrative in the fairness letter refers to "excessive demand"and describes the medical services that would be required by the Applicant. These references include the concept of both costs and displacement of Canadians. As a result, there was no need to identify specifically the notion of displacement.
Relevant Statutory Provisions
[15] The Applicant was found to be inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act:
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;
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
a) celles qui souffrent d'une maladie ou d'une invalidité don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't l'avis est confirmé par au moins un autre médecin agréé, conclut_:
. . .
(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé;
Analysis
[16] For the reasons that follow, this application should not succeed.
Issue #1: Did the visa officer err in relying on the assessment of the medical officer?
[17] When the medical opinion formed by the medical officer under subparagraph 19(1)(a)(ii) of
the Immigration Act is valid, that opinion is binding on the visa officer: Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.). However, where there is reason, based on the record, for the visa officer to question the reasonableness of the medical opinion and the visa officer relies on that opinion anyway, the visa officer will have committed a reviewable error (Poste, supra). The grounds of unreasonableness include patently unreasonable errors of fact, incoherence or inconsistency, absence of supporting evidence and failure to consider cogent evidence (Fei, supra; Gao v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 114 (T.D.) (QL)).
[18] The Applicant submitted that the visa officer erred in relying on the medical officer's assessment. The Applicant relied on the decision of Cullen J. in Poste to support her submission that the medical officer was required to assess the Applicant in the uniqueness of her case. I agree with the Respondent that the present case can be distinguished from Poste. In any event, I am of the view that the duty set out in Poste was met.
[19] The duty of medical officers to assess the circumstances of each individual in their uniqueness was described by Cullen J. in Poste, at paragraph 55 as follows:
The medical officers now have the statutory duty to give an opinion as to demands that would likely be placed on social services. It is insufficient for a medical officer to give an opinion on such demands in general; the opinion must be founded firmly on the individual's personal circumstances and all the circumstances of the case. These would include the degree of family support and commitment to the individual, and the particular resources of the community. While a particular individual may cause excessive demands in one situation, in a different setting, the same individual may cause minimal or no demands at all. Medical officers must address themselves to the particular circumstances of the individual. Otherwise, cogent evidence is ignored, and opinions regarding demands on social services become unfounded and cannot be upheld by this Court.
[20] In this case, there is evidence that the medical officers considered the particular circumstances of the Applicant in assessing whether she would be inadmissible on medical grounds. The narrative on the Medical Notification indicates that the medical officers considered the progress of the Applicant's cancer and the treatment that she had already undertaken:
This 47 year old applicant underwent a simple extended mastectomy in 1994 for invasive ductal carcinoma of the breast. This was followed by six courses of chemotherapy. In July 1997 she was found to have metastasis in the spinal vertebrae at T6 and T7 levels and underwent six cycles of second line chemotherapy. In August 1998 she was found to have metastases to the left humerus and underwent palliative radiotherapy. She continues to be followed by specialist physicians. This cancer is expected to progress. With progression of disease she will likely require repeated hospitalizations and is unlikely to be able to continue gainful employment. She is expected to deteriorate with time and to require further treatment. If admitted to Canada she will be entitled to and will likely require specialist care from a cancer specialist and will probably require further treatment with radiotherapy, chemotherapy or both. Accordingly her admission is expected to place excess demand on Canada's health care systems. She is therefore inadmissible under section 19(1)(a)(ii) of the immigration act.
[21] Dr. Brown indicates in his Affidavit that he considered the fact that the Applicant had been stable since March 1999, but that stability provided no solid basis upon which to conclude, in either May or June 1999, that the cancer would not recur. There is no evidence that the medical officers relied on the statement in the Medical Officer's Handbook that metastatic breast carcinoma will be permanently assessed as M7. Rather, the material in the Certified Tribunal Record indicates that this statement was a factor considered by the visa officer in reaching her determination on the Applicant's inadmissibility.
[22] The evidence indicates that the medical officers considered the Applicant's disease and her particular experience with that disease in making their assessment on the issue of excessive demand. There was also evidence to support the conclusions of the medical officers that, although the Applicant's cancer has stabilized, she will require care from a cancer specialist in the future and will probably require further treatment. As a result, their assessment was reasonable and the visa officer did not err in relying on that assessment.
Issue #2: Was the fairness letter deficient because it only invited the Applicant to provide further medical evidence and did not invite her to address the issue of excessive demand?
[23] In Khan, supra at paragraphs 22 and 23, Evans J.A., writing for the Federal Court of Appeal, held that the duty of fairness does not require that visa applicants be expressly invited to address the issue of excessive demand:
The duty of fairness does not require that visa applicants be expressly invited to make further submissions on both the medical and the excessive demands issues. The burden of establishing eligibility for a visa is on the applicant. In this context, a failure specifically to invite submissions on an issue is not to be equated with a refusal to accept them. After all, the letter clearly indicates that the visa officer has not yet made a decision on medical inadmissibility. While it would no doubt be advisable for the Minister to amend the standard form of the fairness letter so as to make it quite clear to visa applicants that they may submit material on both issues, the law does not hold the Minister to a standard of procedural perfection.
There is ample authority for the proposition that the omission from the fairness letter of an express invitation to submit further material on the excessive demands opinion does not deny to visa applicants their right to a reasonable opportunity to respond to concerns on this issue, even though the letter does explicitly invite applicants to provide additional evidence on the medical conclusions: Hussain v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 865 (F.C.T.D.), at paragraph 21; Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (F.C.T.D.), at paragraphs 4-6; Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (F.C.T.D.), at paragraphs 15-17; Koudriachov v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 138 (F.C.T.D.), at paragraph 34.
[24] Evans J.A. then analysed the decision of Reed J. in Wong, supra. He concluded that Wong, supra does not support the proposition that procedural fairness requires visa applicants be explicitly invited to address the issue of excessive demand. As a result, the decision of Reed J. in Wong, supra does not contradict his finding on this issue.
[25] Therefore, it is clear that there is no support for the Applicant's submission that the fairness letter was deficient because it did not specifically invite her to make submissions on the issue of excessive demand. The general statement in the fairness letter, which invited the Applicant to respond to the description of her medical condition with new medical information of her own, was sufficient to comply with the duty of fairness.
Conclusion
[26] Accordingly, this application for judicial review is dismissed. There is no question for certification.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review is dismissed.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-4693-01
STYLE OF CAUSE: NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 4, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER AND ORDER BY: SNIDER J.
DATED: WEDNESDAY, FEBRUARY 12, 2003
APPEARANCES BY: Ms. Elizabeth Jaszi
For the Applicant
Ms. Kareena R. Wilding
For the Respondent
SOLICITORS OF RECORD: Ms. Mary Lam
Barrister & Solicitor
206 Bloor Street West
Suite #3
Toronto, Ontario.
M5S 1T8
For the Applicant
Morris A. Rosenberg, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030212
Docket: IMM-4693-01
BETWEEN:
NASIMBANU GILANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER