Date: 20031107
Docket: IMM-1827-02
Citation: 2003 FC 1313
Between:
KATIR BRAHIM
Lot. Andalloussia, Imm. 49, No. 8
Casablanca, Morocco
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
c/o Deputy Attorney General of Canada,
Department of Justice, having an office at
Complexe Guy Favreau, 200 René-Lévesque West,
East Tower, 5th floor, in the city of Montréal,
Province of Quebec
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of the decision by which Louis St-Arnaud, a visa officer ("the officer") at the Canadian Embassy in Paris, France, concluded on March 27, 2002, that, on the ground that the applicant belonged to an inadmissible class of persons described in subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act"), he did not meet the necessary conditions for immigrating to Canada.
[2] In May 2001, the applicant Brahim Katir, 53 years old, filed a permanent residence application in the "independent" class with the Immigration office at the Canadian Embassy in Paris. The applicant's wife, Zoubida Kreitif, and their daughter Aziza Katir, are the applicant's dependants.
[3] On May 18, 2001, form IMM-1017, "Medical Report", was sent to the applicant so he could submit the medical report required by the Act. This form was completed by Dr. Joseph El Baz in Casablanca, Morocco on June 14, 2001. According to the report the applicant suffers from obesity and hypertension. The applicant was referred to a cardiologist on account of an electrocardiogram showing ischemia.
[4] According to the cardiologist, Dr. Ahmed Setti, the applicant is suffering from repolarization problems in the ECG. Additionally, the applicant has several risk factors such as excess weight, a smoking problem and mixed dyslipemia. Dr. Setti's report was accompanied by several results of tests taken by the applicant.
[5] In light of these two medical reports, Dr. Saint-Germain prepared a statement countersigned by Dr. Bertrand on August 16, 2001. According to that statement:
[TRANSLATION]
This 51-year-old applicant is suffering from advanced coronary disease, as indicated by a coronarography dated June 28, 2001, that showed multiple and severe damage to the coronary vessels.
The evolution of this illness is such that it is reasonable to expect that the applicant will need specialized medical care and hospital tests, and finally hospitalization. According to the evaluations made by the Department, these services are costly and entail higher medical expenses than those annually incurred for the average Canadian. According to the annual report of the Fraser Institute, "Waiting Your Turn", based on recent provincial studies of the availability of health care, there are also waiting lists for medical services needed by the applicant. The admission of this applicant would displace Canadians and residents of Canada on waiting lists for such care. As a result of his need for medical care, the admission of the applicant to Canada would probably impose an excessive burden on Canadian medical services. Consequently, the applicant is inadmissible under subparagraph 19(1)(a)(ii) of the Canada Immigration Act.
[6] On September 27, 2001, an immigration officer sent the applicant a letter telling him the doctor's findings and giving him the opportunity to provide additional medical information.
[7] On November 30, 2001, the Immigration Department received a report from Dr. Benmimoun dated November 15, 2001, accompanied by a letter from the applicant's lawyer. According to that report, the applicant's cardiac problems could be overcome by the removal of risk factors. Dr. Benmimoun's report was not accompanied by any result of tests taken by the applicant.
[8] After analyzing this information Dr. Saint-Germain and Dr. Bertrand concluded that Dr. Benmimoun's report did not alter the inadmissibility finding of August 16, 2001.
[9] On March 27, 2002, the officer rejected the applicant's application for permanent residence because he did not meet the requirements for immigration to Canada. In his letter of that date the officer explained:
[TRANSLATION]
. . . you are in the class of inadmissible persons described in paragraph 19(1)(a) of the 1976 Immigration Act . . . because you are suffering from "coronary disease - 414, obesity and arterial hypertension", the nature, seriousness and probable duration of which are such that according to a qualified physician, whose opinion is confirmed by at least one other qualified physician:
"Your admission would entail or be likely to entail an excessive burden for social and health services".
[10] The applicant submitted that the visa officer's decision was based on incorrect and patently unreasonable factors with no relation to the Act and the criteria in section 19.
[11] A person seeking permanent residence has the burden of showing that his admission to Canada is not contrary to the Act (see subsection 8(1) of the Act).
[12] In the case at bar the officer did everything necessary to ensure that the applicant had an opportunity of filing the documents and information relating to his application, as appears from the officer's affidavit and the notes recorded in the automated immigration file system. According to that information, the officer sent a letter on September 27, 2001, giving the applicant an opportunity to provide the Immigration Service with additional relevant information. However, the applicant's additional report was not able to persuade the two qualified physicians that admitting the applicant to Canada did not contravene the Act.
[13] The applicant is right to say that the mere fact that he is suffering from illness does not suffice to make him inadmissible under subparagraph 19(1)(a)(ii). The visa officer must address more specifically the repercussions the illness will have on Canadian society (see Mo v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 216 (F.C.T.D.) (QL), and Prada v. Minister of Citizenship and Immigration, [2001] F.C.J. No. 137 (F.C.T.D.) (QL)). Reading Dr. Setti's report suggests that although he did not prescribe immediate specific treatment, the applicant's condition will require specialized treatment in future. Further, according to Dr. Saint-Germain's statement there are long waiting lists in Canada for the same treatment and the applicant's admission would be likely to displace Canadians.
[14] The visa officer made no error when he relied on the conclusions of Drs. Saint-Germain and Bertrand in assessing the applicant's admissibility. The visa officer must act on the opinion of physicians approved by the Act (see Tong v. Minister of Citizenship and Immigration (October 31, 1997), IMM-2565-96). Those physicians, in turn, relied on the results of tests taken by the applicant and on Dr. Setti's report. In light of that information, Drs. Saint-Germain and Bertrand arrived at a reasonable conclusion that the applicant is inadmissible.
[15] I have no difficulty in finding that the officer made no patent error in his assessment of the facts.
[16] For all these reasons, the application for judicial review is dismissed.
[17] Following the hearing of this case, counsel for the applicant was allowed 15 days to suggest any question which could be certified, a proposal to be supported by written submissions. On October 21, 2003, counsel for the applicant proposed certification of the following two questions, without filing any written submissions:
[TRANSLATION]
1. Can the possibility of deterioration in the applicant's condition, if risk factors are not eliminated, suffice as a ground for inadmissibility to Canada?
2. In determining the existence of an excessive burden on health services, should it first be determined what medical procedures will become necessary for the applicant (e.g. surgery, hospitalization)?
[18] After reading the written submissions filed by counsel for the respondent objecting to the certification requested, I agree with the latter that the two proposed questions do not meet the criteria in paragraph 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (see also Liyanagamage v. Canada (M.C.I.) (1994), 176 N.R. 4). Accordingly, no question is certified.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
November 7, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1827-02
STYLE OF CAUSE: KATIR BRAHIM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 7, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: November 7, 2003
APPEARANCES:
Julius H. Grey FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Grey, Casgrain FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario