Date: 20031202
Docket: IMM-1608-02
OTTAWA, Ontario, this 2nd day of December, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
FREDERICK CAMPAYNE
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 S.K. Brady, Immigration Officer, refusing the applicant for permanent residence in Canada as inadmissible pursuant to sub-paragraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 because his medical condition "would cause or might reasonably be expected to cause excessive demands on health services."
[2] The applicant was diagnosed with Type 2 diabetes in 1990. He has actively controlled his diabetes through diet, exercise and pills. He sees a medical specialist approximately every nine to twelve month period, and does not require any other special treatment. He states that he is "healthy, fit and working".
[3] However, the respondent assessed the applicant's medical condition and diagnosed the applicant with diabetic nephropathy. The "Medical Notification" prepared by Dr. M. Cooper dated April 2, 2001 and concurred in by Dr. J. Saint-Germain on May 4, 2001 states:
This 61 year old applicant has diabetic nephropathy. There is evidence of his decreased kidney function in the form of a decreased creatinine clearance (half the expected value for his age group), an elevated serum creatinine, and protein excretion of over 300 mg per day. He has other evidence of organ damage secondary to his long-standing diabetes in the form of diabetic exudates in his eyes. His diminished kidney function is further complicated by the presence of hypertension, a factor known to accelerate renal dysfunction.
This condition is such that it is reasonable to expect progressive deterioration of kidney function, requiring the ongoing management and treatment by specialists in the fields of diabetes and nephrology. Further deterioration or complications of his already impaired renal function would require utilization of specialized hospital services for diagnosis and treatment. These services are expensive and in high demand. Should he be admitted to Canada, his probable requirement for these services would place an excessive demand on the health care system in terms of both cost and displacement of Canadians from resources which are in high demand. He is, therefore, inadmissible under Section 19 (1)(a)(ii) of the Immigration Act.
[4] Other medical evidence included a report from a nephrologist, Dr. Alan Patrick in Trinidad, whose report dated March 20, 2001 also diagnosed the applicant with diabetic nephropathy and stated:
[...] This disease is a slowly progressive one, the course of which is likely to be optimized once he has good blood pressure control and his protein intake is restricted.
I would anticipate that once he continues to be a compliant patient and with good control of his blood pressure and protein intake, that his expectancy is approximately ten (10) years.
ISSUES
[5] The applicant raises two main issues:
1. Did the respondent err by finding that the applicant's medical condition might cause or might reasonably be expected to cause excessive demands on health services in Canada, particularly since such health services may not be required until ten years time; and,
2. Did the respondent breach the duty of fairness by relying on the Medical Officer's Handbook and additional material including reports from the Canadian Diabetes Association without first disclosing the information to the applicant.
RELEVANT LEGISLATION
[6] Section 19(1)(a)(ii) of the Immigration Act 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 hearth 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;
STANDARD OF REVIEW
[7] The finding that the applicant's condition "would cause or might reasonably be expected to cause excessive demands" on health services, is a mixed question of fact and law involving medical expertise. As stated by the Federal Court of Appeal in the Minister of Citizenship v. Hilewitz, unreported A-560-02 dated November 12, 2003 at paragraph 65:
If the medical opinion is founded on evidence, the findings of fact on which the opinion is based, and the medical officer's application of the statutory provision to the facts, are entitled to considerable deference.
Accordingly the standard of review is reasonableness.
[8] With respect to the duty of fairness, this is a question of law for which the standard of correctness applies.
(a) The medical opinion
[9] The medical opinion of Dr. Cooper that the applicant was suffering from diabetic nephropathy is not in issue. The evidence shows that this is not a normal case of diabetes. Dr. Cooper found evidence of decreased kidney function, other evidence of organ damage in the form of diabetic exudates in his eyes, and hypertension -- a factor known to accelerate renal dysfunction. Dr. Cooper stated that:
This condition is such that it is reasonable to expect progressive deterioration of kidney function, requiring the on-going management and treatment by specialists in the fields of Diabetes and Nephrology. Further deterioration or complications of this already impaired renal function would require utilization of specialized hospital services for diagnoses and treatment. These services are expensive and in high demand. Should he be admitted to Canada, his probable requirement for these services would place an excessive demand on the health care system in terms of both cost and displacement of Canadians from resources which are in high demand.
[10] The nephrologist in Trinidad, Dr. Alan Patrick, made the same diagnosis and stated that the applicant, if he maintains good control of his blood pressure and protein intake, has an expectancy of approximately ten years. On cross-examination Dr. Cooper testified that she took this prognosis meant that kidney failure will occur in ten years. Obviously kidney dialysis is then required or a kidney transplant.
[11] Based on this evidence, I find the medical officer's opinion, that it is reasonable to expect progressive deterioration of kidney function which will require treatment by specialists and specialized hospital services, is reasonable.
[12] The only question is when would the applicant's impaired renal function require specialized hospital services. In Hilowitz, the Federal Court of Appeal stated that the time frame to consider "excessive demands" on health services means a period limited "to the next five, or possibly, ten years." This is consistent with the new statutory definition of "excessive demand" in the Immigration and Refugee Protection Regulations, SOR/2002-227 which refers to a period of five years, unless there is evidence that significant costs are likely to be incurred beyond that period, in which case the period is no more than ten consecutive years. This definition was not in force or effect at the time of the decision under review, but it would be applied if the decision was set aside and referred back. In this case, the medical evidence is that the applicant's kidney function will require specialized hospital services within ten years. Accordingly, the decision based on the requirement within ten years was reasonable.
(b) Duty of fairness
[13] The applicant was given notice of the respondent's medical diagnosis of diabetic nephropathy, of the applicant's decreased kidney function, of the reasonable expectation that there will be progressive deterioration of kidney function, and that the impaired renal function will require utilization of specialized hospital services which are expensive and in high demand. The applicant also had the letter from Dr. Patrick which categorically stated that the applicant's disease is a "slowly progressive one" which with optimal control, would give the applicant an expectancy of approximately ten years. This means that there will be an expectancy of kidney failure in approximately ten years, which would lead to death, but for specialized hospital treatment. It was not necessary for the medical opinions to spell out that the treatment for kidney failure is kidney dialysis and/or a kidney transplant.
[14] The Federal Court of Appeal has held in Jang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1575 that the duty of fairness does not require the visa officer to divulge to the applicant the complete details of the medical officer's method of evaluation. Rather, the duty of fairness requires that a visa officer give an applicant an adequate opportunity to respond to any negative medical assessment provided that the medical notification clearly annunciates the reason for the negative assessment. Following Jang, I am satisfied that the information provided the applicant in this case is sufficient to meet the requirements of the duty of fairness.
[15] The applicant had an adequate opportunity to respond to the visa officer's opinion about excessive demands. The medical opinion from Trinidad affirmed the respondent's medical opinion that the applicant will require hospitalization services.
[16] The applicant did not provide any medical evidence that the applicant did not have diabetic nephropathy, or that the long-term effect of the condition requires dialysis or a kidney transplant within ten years.
CERTIFIED QUESTION
[17] Both parties agreed that this application did not raise a serious question of general importance for certification. The Court agrees, particularly since the question of the appropriate time frame for assessing "excessive demand" has been defined as up to ten years under the new Regulations, and this definition would apply if the case were sent back for a redetermination.
ORDER
THIS COURT ORDERS THAT:
This application for judicial review must be dismissed, and no question is certified.
"Michael A. Kelen"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1608-02
STYLE OF CAUSE: FREDERICK CAMPAYNE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, NOVEMBER 27, 2003
REASONS FOR ORDER
AND ORDER BY: KELEN J.
DATED: TUESDAY, DECEMBER 2, 2003
APPEARANCES BY: Ms. Robin L. Seligman
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Ms. Robin L. Seligman
Barrister & Solicitor
30 St. Claire Avenue West
10th Floor
Toronto, Ontario
M4V 3A1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031202
Docket: IMM-1608-02
BETWEEN:
FREDERICK CAMPAYNE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER