Date: 20031020
Docket: IMM-5463-02
Citation: 2003 FC 1217
Ottawa, Ontario, October 20, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
ANNESLEY BERTRAM GOMES
ROSEMARY ALOMA GOMES
ROZELLE NATASHA GOMES
MITCHELL BERTRAM GOMES
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of a humanitarian and compassionate officer ("H & C officer") dated October 21, 2002, wherein she determined that the applicant and his family were not eligible for permanent residency on humanitarian and compassionate grounds due to his medical inadmissibility.
[2] In September 1999, the family made a single application for permanent residency based on humanitarian and compassionate grounds. The applicant and his wife have two children who applied as dependants of their father. Both were over 18 years of age at the time of the application, but they were both full-time students, qualifying them as dependents. As a result of this application one file was created for the whole family (file number 3708-31824364).
[3] The applicant and his wife put their children through university and now both have graduated and have started their careers. Both parents work.
[4] The application was approved on April 12, 2002, and approval letters were given to each family member.
[5] On July 10, 2002, it was found that the applicant was medically inadmissible. The medical officer found that the applicant's medical condition was such that it would pose excessive demands on the Canadian health system. As a result the H & C officer concluded that his three dependent family members were also inadmissible.
[6] On August 14, 2002, counsel for the applicant sent a letter to the H & C officer requesting that she rescind her decision because the applicant did not have a chance to respond to her decision pertaining to his medical inadmissibility and requesting that the H & C officer consider the two children independently because they were no longer dependents of the applicant at the time of the approval.
[7] The H & C officer agreed to rescind her decision and sent the applicant and his family a letter giving him the opportunity to rebut her finding of medical inadmissibility. She refused to consider the children's application separately since they had applied as dependents. She advised them that the children could withdraw their application as dependents and submit a new application as independents.
[8] The applicant responded to the H & C officer by submitting new medical information that indicated that his current medical condition was relatively stable at the moment. The medical officer considered this additional information but found that it did not change his previous assessment. He found that the applicant's renal function continued to deteriorate even though he was taking an optimal medical treatment. Therefore, his condition was such that it was reasonable to expect progressive deterioration of his kidney function requiring ongoing management of a specialist in kidney disorders. Further deterioration would require access to specialized hospital facilities, which are expensive, and in high demand.
[9] The H & C officer considered the medical officer's final opinion and concluded that all four applicants remained inadmissible. Given their inadmissibility, she either had to require them to leave Canada (as they no longer had status to remain here) or she could facilitate their stay in Canada by recommending they obtain TRPs. She chose to issue them TRPs.
[10] Firstly, the applicant submits that the decision pertaining to his medical inadmissibility was unreasonable since his condition has been stable for one year and he has not required any further treatment.
[11] Paragraph 38(1)(c) of the Act reads:
| 38(1) Health grounds - A foreign national is inadmissible on health grounds if their health condition
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(c) might reasonably be expected to cause excessive demand on health or social services |
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38(1) Motifs sanitaires - Emporte, sauf pour le résident permanent, interdiction de territoire pour motifs sanitaires l'état de santé de l'étranger constituant vraisemblablement un danger pour la santé ou la sécurité publiques ou risquant d'entraîner un fardeau excessif pour les services sociaux ou de santé. |
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[12] The IRP Regulations subsection 1(1) defines "excessive demand" as follows:
| (a) a demand on health services or social services for which the anticipated costs would likely exceed average Canadian per capita health services and social services costs over a period of five consecutive years immediately following the most recent medical examination required by these Regulations, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than 10 consecutive years; or
(b) a demand on health services or social services that would add to existing waiting lists and would increase the rate of mortality and morbidity in Canada as a result of the denial or delay in the provision of those services to Canadian citizens or permanent residents. |
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a) de toute charge pour les services sociaux ou les services de santé dont le coût prévisible dépasse la moyenne, par habitant au Canada, des dépenses pour les services de santé et pour les services sociaux sur une période de cinq années consécutives suivant la plus récente visite médicale exigée par le présent règlement ou, s'il y a lieu de croire que des dépenses importantes devront probablement être faites après cette période, sur une période d'au plus dix années consécutives;
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[13] The jurisprudence of the Federal Court has established clearly that a reviewing court is not competent to make findings of fact relating to the validity and accuracy of the medical officer's diagnosis and prognosis with respect to the identified health condition (Jiwanpuri v. Canada (Minister of Employment and Immigration) (1990), 10 Imm.L.R. (2nd) at 241). However, the Court is competent to review the medical officer's opinion as to excessive demand. The applicable standard of review is that of reasonableness simpliciter (Ahir v. Canada (1983), 49 N.R. 185 (F.C.A.). Grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in section 22 of the Regulations (Gao v. Canada (M.E.I.) (1993), 18 Imm.L.R. (2d) 306 (F.C.T.D.) at p. 318).
[14] As stated above, the medical officer determined that the applicant suffered from diabetic nephropathy, showed significant proteinuria and also suffered from hypertension which is a risk factor in accelerating the progression of diabetic nephropathy. This is a serious medical condition that can lead to the deterioration of kidney functions and is usually one leading to renal failure. He concluded that it would require the ongoing management of a specialist in diabetes and kidney disorders. The continued deterioration of his already impaired renal function would require access to specialized facilities for diagnostic and continued treatment such as dialysis within the next five to 10 years.
[15] He did consider the additional medical information provided by the applicant, but it was not sufficient to convince him to change his assessment.
[16] Based on the excessive cost of dialysis treatment and the negative impact on those in Canada already requiring these services, he determined that the applicant's admission to Canada as an immigrant might reasonably be expected to cause excessive demand on Canadian health services.
[17] I am satisfied that the medical officer reached a diagnosis and prognosis based upon current medical evidence available concerning the applicant, and that he identified with clarity the nature of the health condition discovered. Further, his opinion on excessive demand was formulated after due consideration of the evidence concerning the severity of the health condition and the specific health services required as a result of the condition.
[18] Thus, I am of the opinion that the medical officer did not err in law in finding the applicant medically inadmissible and the H & C officer was correct in relying on the medical officer's expert opinion.
[19] Secondly, the applicant submits that since the children finished their schooling in June 2001, they had ceased being dependents at the time of the granting of the exemption. Thus, they had to be treated as independent applicants. However, this assertion is not supported by the evidence.
[20] The applicants applied for permanent residence in Canada on H & C grounds as a family unit. The applicant claimed his children as dependents when he made his application for permanent residency. The children were 21 and 22 years old at that time but were both full time students, thus, they were correctly listed as dependents of their father and they were considered as such throughout the process. In fact, a single file number was created for the whole family. They received a separate acknowledgement letter confirming receipt of their application as well as a separate acceptance letter. Counsel for the applicant suggests that the fact that each member of the family received a separate acceptance letter was evidence that they had been treated separately. I disagree. I do not see how the fact of sending each family member an individual letter, which refers to one file number, is evidence that they were considered independently. Further, I accept the explanation given by the H & C officer that the reason for addressing a separate letter to each family member is related to OHIP coverage. Applicants who have received positive H & C decisions are required to present their acceptance letter to OHIP.
[21] Moreover, the H & C officer informed the children of the procedure they needed to take in order to sever their application and make an independent one. They were free to proceed in this manner and chose not to do so. In fact, they never requested to be treated independently until their father was found inadmissible.
[22] Finally, the main reason the applicants requested an exemption from having to apply from abroad was that the children were students. The parents did not want to leave Canada because their children were in the middle of their studies, and the children did not want to interrupt their studies. Thus, it is evident that the positive H & C decision was based on the family's application as a unit.
[23] I reiterate that the children remain free to make their own application at any time.
[24] For these reasons, this application for judicial review is dismissed.
ORDER
THIS COURT ORDERS that the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-5463-02
SYLE OF CAUSE: ANNESLEY BERTRAM GOMES, ROSEMARY ALOMA GOMES, ROZELLE NATASHA GOMES, MITCHELL BERTRAM GOMES
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 15, 2003
REASONS FOR ORDER
AND ORDER BY: TREMBLAY-LAMER, J.
DATED: OCTOBER 20, 2003
APPEARANCES BY:
Mr. Lorne Waldman For the Applicants
Ms. Negar Hashemi For the Respondent
SOLICITORS OF RECORD:
Lorne Waldman
Waldman and Associates
Barristers and Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3 For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent