Federal Court Decisions

 

Date: 20070413

Docket: IMM-2183-06

Citation: 2007 FC 384

BETWEEN:

LAKHVINDER SINGH ROUNTA

Applicant

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR ORDER

GIBSON J.

 

INTRODUCTION

[1]               These reasons follow the hearing of an application for judicial review of a decision of a Visa Officer (the “Officer”) at the Canadian Consulate General in Hong Kong, dated the 13^th of February, 2006, wherein the Officer determined the Applicant to be inadmissible to Canada as a permanent resident by reason of his daughter, Guramanat Kaur Rounta, a proposed accompanying family member on the Applicant’s application, being a person described in paragraph 38(1)(c) of the Immigration and Refugee Protection Act[1] (the “Act”). 

 

[2]               The relevant portions of subsection 38(1) of the Act read as follows:

 

[3]               The opening words of section 42 of the Act and paragraph (a) of that section read as follows:

 

BACKGROUND

[4]               The Applicant is a citizen of India.  He is well educated, reasonably fluent in English and operates his own business.  He is married with two children, one of whom is Guramanat Kaur Rounta.  The Applicant has a number of relatives who are resident in Canada and who support his application to come to Canada as a permanent resident.  The Applicant’s spouse has a sister who is a medical doctor in Canada.

 

[5]               The Applicant and his spouse were interviewed by the Officer who made the decision under review.  Her notes of that interview conclude:

Satisfied applicant meets selection criteria.  Pos Sel Dec [positive selection decision] entered.  Applicant to submit documetns [sic] showing proof of relationship to sister of applicant’s spouse.

 

Meds [medical report forms] handed over at interview.

 

[6]               In an affidavit filed on this application for judicial review, the Officer attests:

5.  On April 7, 2005, the medical results for Guramanat Kaur Rounta necessitated a request for a further round of medical tests as described and requested by the Medical Officer who reviewed the medical results.  On April 28, 2005, the Medical Section of Canadian High Commission in Beijing sent a letter to the Canadian Consulate General in Hong Kong which then forwarded the letter to the Applicant describing what was required to be done.  A second letter was sent to the Applicant on July 5, 2005.  Finally, a reminder letter was sent on September 8, 2005 and a copy of it was put on file.

 

6.  The Hong Kong Immigration Section of the Canadian Consulate General received a Medical Notification letter by fax from the Beijing Medical Section…date-stamped September 13, 2005.  A copy of this Medical Notification letter was sent to the Applicant on October 6, 2005 along with a letter advising that the Applicant’s daughter, Guramanat Kaur Rounta, had a medical condition which might render her, and consequently the Applicant and other included dependants, medically inadmissible.  Consequently, the Applicant was provided Form…and given 60 days in which to make any additional submissions with respect to the medical condition of his daughter.     

[Form identifiers omitted]

 

[7]               The sixty (60) days in which to make additional submissions regarding the Applicant’s daughter’s medical condition was extended.  Within the extended period, the Applicant replied providing five (5) medical certificates from various medical doctors in India, a report of the results of medical testing, a letter describing Guramanat Kaur Rounta’s educational background and performances and a request to reconsider the finding of medical inadmissibility.  All of the foregoing were reviewed by the medical doctor who made the original assessment in respect of Guramanat Kaur Rounta.  He confirmed his original assessment.  In the result, the decision under review issued.

 

THE MEDICAL NOTIFICATION

[8]               Guramanat Kaur Rounta was assessed as having the following health condition:  “Severe restrictive lung disease”.

 

[9]               The narrative in support is in the following terms:

This girl born on September 20, 1995, has severe restrictive lung disease.  She has abnormal pulmonary function tests showing a decreased FEV1 at 37% and FVC at 36% of predicted, with significantly impaired ventilatory function, confirming the severity of her lung restrictive disease.  Currently her pulmonary functional status does not show evidence of respiratory failure, however, as reported by the chest specialist, her prognosis is guarded and she is likely to progress and deteriorate further toward respiratory failure. 

 

Severe restrictive lung disease is a condition which is expected to persist and to deteriorate, especially if associated with secondary airway tract infection.  She is expected to require regular medical follow-up by a multidisciplinary team (chest specialists, family physicians, respiratory therapists, nurses,) specialized in treating patients with severe restrictive lung disease.  She is also expected to require specialized treatment like respiratory therapy, home oxygen therapy and frequent hospitalizations at emergency rooms and/or tertiary health care institutions within intensive care unit to treat her respiratory complications.

 

Based upon my review of the results of this medical examination and all the reports I have received with respect to the applicant’s health condition, I conclude that she has a health condition that might reasonably be expected to cause excessive demand on health services.  Specifically, this health condition might reasonably be expected to require services, the costs of which would likely exceed the average Canadian per capita costs over 5 years.

 

The Applicant is therefore inadmissible under Section 38(1)(a) of the Immigration and Refugee Protection Act.

 

Also has Severe congenital scoliosis with no cage deformity and surgical vertebral fusion – history of myelomeningocele.

 

[10]           As earlier indicated, all of the foregoing was confirmed following receipt of the Applicant’s response to the Medical Notification.

 

 

THE ISSUES

[11]           In the Memorandum of Fact and Law filed on behalf of the Applicant, only one issue is identified.  That issue is the following:

Is the decision of the visa officer unreasonable or patently unreasonable in that, she made several factual mistakes and based her decision upon an erroneous finding of the fact [sic] in a perverse and capricious manner, in violation of a principle of fairness or natural justice?

 

At hearing, counsel for the Applicant essentially ignored the foregoing issue and focussed entirely upon a review of the medical certificates, apparently from well qualified medical specialists in India, in response to the Medical Notification provided to the Applicant with respect to Guramanat Kaur Rounta.  No submissions were made on behalf of the Applicant with respect to the appropriate standard of review.   Regrettably, no synthesis of the five (5) medical certificates and the results of medical testing was put before the Court on behalf of the Applicant and the medical certificates and test results, taken individually, were only obliquely, at best, a commentary on the Medical Notification.  While counsel for the Applicant made much at hearing of the fact that none of the Applicant’s medical certificates spoke of “lung disease”, or more particularly, “Severe restrictive lung disease”, counsel left it to the Court to conclude on the basis of this difference in terminology that the authors of the Applicant’s medical certificates were in substantial disagreement with the Medical Notification narrative and that their piece-meal reports should be preferred.

 

ANALYSIS AND CONCLUSON

[12]           The sole synthesis of the medical certificates and test results provided by the Applicant in response to the Medical Notification that is before the Court is contained in the affidavit of Michel Lapointe, a specialist in family medicine, a member of la Corporation Professionnelle des Médecins du Québec and a long-term employee of the Government of Canada in overseas medical immigration services.  In paragraph 2 of his Affidavit, Dr. Lapointe attests:

2.  Je suis à l’emploi du gouvernement fédéral depuis 1991, d’abord aux services médicaux de l’immigration de la région Outre-Mer de Santé Canada, puis aux Services médicaux de l’immigration suite au transfert de notre section au Ministère de la Citoyenneté et d l’immigration Canada en 1993, et ensuite comme Directeur et Directeur régional du Programme Outre-mer de la Santé.  Une partie de mon travail consiste à faire une évaluation médicale des candidats à l’immigration lorsqu’un candidat est inadmissible médicalement en vertu du paragraphe 38(1) de La loi sur l’immigration et la protection des réfugiés (‘LIPR’).

 

[13]           Dr. Lapointe’s synthesis of the Applicant’s medical certificates and test results is in the following terms:

10.  J’au lu et considéré tous les documents fournis par le Demandeur.  Cependant, mon opinion que la fille était médicalement inadmissible n’a pas changé parce que les divers certificats médicaux mentionnés ci-dessus confirment la scoliose congénitale avec les difformités secondaires de la cage thoracique.  De plus, les analyses de fonction respiratoire effectuées le 9 décembre 2005 démontrent une FVC diminuée à 37.8% de la valeur prédite et une FEV1 aussi diminuée à 41.1% de la valeur prédite.  Ces résultats répétés de la fonction respiratoire sont consistants avec ceux pris en considération lors de l’inadmissibilité médicale et démontrent une atteinte sévère de la fonction respiratoire.

 

11.  Donc, même si les médecins mentionnés ci-dessus indiquent que la fille n’aura pas besoin d’une chirurgie dans le proche avenir, une personne avec une maladie pulmonaire obstructive sévère, aura besoin d’un suivi médical par une équipe multidisciplinaire composée entre autres, de pneumologue, de médecin de famille, d’infirmier, d’inhalothérapeute.  Elle aura besoin aussi de soins en inhalothérapie, d’hospitalisations aux urgences et aux unités de soins intensifs lors des épisodes de complications et d’exacerbation ainsi que des traitements d’oxygénothérapie.

 

12.  Par rapport aux opinions que la fille n’a pas de maladie pulmonaire et qu’elle est neurologiquement stable, je répondrais que les tests de fonction respiratoire répétés le 9 décembre 2005 confirment de nouveau la maladie pulmonaire obstructive sévère dont souffre la fille qui est secondaire à sa scoliose congénitale sévère avec la déformation thoracique qui en résulte.  Avec la croissance, on peut s’attendre à une détérioration des problèmes médicaux dont souffre la fille.

 

[14]           Dr. Lapointe, after a brief cost analysis of the services he opines the Applicant’s daughter is likely to require, concludes by affirming the conclusion of his Medical Notification that Guramanat Kaur Rounta is inadmissible under paragraph 38(1)(a) of the Act.  With great respect to counsel for the Applicant, on the material before the Court and on the basis of his submissions at hearing, the Court is left with no alternative but to adopt Dr. Lapointe’s synthesis of the Applicant’s medical certificates and test results.

 

[15]           Against a standard of review of correctness[2], applied against the highly subjective test in paragraph 38(1)(c) of  the Act  “…might reasonably be expected to cause excessive demand on health or social services”, it was entirely open to the Visa Officer to reach the decision here under review based upon the medical analysis in the underlying Medical Notification and the confirmation of that analysis by Dr. Lapointe after his review of the piece-meal response to that Notification submitted on behalf of the Applicant.

 

[16]           In the result, this application for judicial review will be dismissed.

 

CERTIFICATION OF A QUESTION

[17]           At the close of the hearing of this application for judicial review, counsel were advised that the application would be dismissed and were given a brief oral explanation for the outcome.  Counsel for the Applicant, when consulted, indicated that he wished to submit a question for certification and that he was not in a position to formulate his question at that time.  The Court agreed to provide time to formulate a question.  Counsel for the Applicant will have until the close of business at the Court on the day after the day on which these reasons are released to counsel to file with the Court and provide to counsel for the Respondent any question that he wishes to recommend for certification.  Thereafter, counsel for the Respondent will have two (2) working days to file with the Court and provide to counsel for the Applicant any responding submissions.  Thereafter, counsel for the Applicant will have one (1) working day to file with the Court and provide to counsel for the Respondent any reply submissions.  Only once submissions on certification of a question have closed and the Court has had an opportunity to consider them, will an Order issue herein.

 

 

“Frederick E. Gibson”

Ottawa, Ontario

April 13, 2007

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-2183-06

 

STYLE OF CAUSE:                          LAKHVINDER SINGH ROUNTA

 

Applicant

 

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      April 4, 2007

 

REASONS FOR ORDER:               GIBSON J.

 

DATED:                                             April 13, 2007

 

APPEARANCES:

 

Harinder S. Gahir	FOR THE APPLICANT
Michael Butterfield and Angela Marinos	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Harinder S. Gahir Brampton, Ontario	FOR THE APPLICANT
Mr. John H. Sims, Q.C. Deputy Attorney General of Canada Toronto, Ontario	FOR THE RESPONDENT