Date: 20010112
Docket: IMM-2705-99
BETWEEN:
LARRY KUTUADU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
PROCEEDINGS
[1] This is an application for judicial review of the decision of the visa officer rendered May 10, 1999 wherein the applications for immigrant visas were refused on the basis that one of the accompanying dependants was medically inadmissible as she would reasonably be expected to create an excessive demand on Canadian health services.
BACKGROUND FACTS
[2] The principal applicant, Mr. Kutuadu (the "applicant") applied for immigrant visas for himself and his family (wife, four children) in May, 1997. The family were Ghanese nationals and most were normally resident in the United Kingdom. The applicant's daughter, Solace, however, had resided in Ghana since 1995.
[3] Mr. Kutuadu and his wife were interviewed at the Canadian High Commission in London on March 24, 1998. The family had met almost all the immigration criteria: Mr. Kutuadu was employed as an accountant, holding a designation similar to the Canadian C.G.A. designation. The visa officer indicated that the office was only awaiting the results of medical exams and that visas could issue shortly after receipt of the reports. There was no questioning about the medical condition of the applicant's daughter, Solace.
[4] Apparently, immigrant visas were subsequently issued to the applicant and his family. But the embassy advised that the visas had been issued in error and the applicant returned them in January, 1999.
[5] Subsequently, the medical officer that examined the family concluded that Solace would require "frequent use of emergency care facilities for pain control and assessment of potential complications such as bone infarction or complications to vital organs . . . vigorous intravenous antibiotic therapy and transfusion therapy" thus placing an excessive demand on Canadian health services.
[6] On February 8, 1999 a letter was sent to the applicant which indicated that the applicant's daughter, Solace, was found to be suffering from sickle-cell anaemia and that there was a concern that she would have an excessive demand on medical services. Sickle-cell anaemia is a condition with similar symptoms to malaria and is a progressive, degenerative disease.
[7] The letter stated that Solace's condition requires "ongoing medical follow-up services and care, and it is expected that her condition will continue and deteriorate, requiring specialist care and extensive use of specialized hospital facilities for diagnosis and treatment". The letter requested information from the family about Solace's condition and a reply to the concerns outlined in the letter.
[8] On February 23, 1999, Mr. Kutuadu replied to the letter and indicated that Solace had intermittent bouts of crises, but that these were not severe and that the pain and the condition in general are "managed and cared for at home". The applicant also sent a report from a Ghanese doctor which confirmed the same.
[9] The visa officer received a letter dated March 10, 1999 from the Sickle Cell Association of Ontario which declared that the disease offered no challenge to the health and social facilities of Canada.
[10] The medical doctors, however, were of the opinion that the only reason the condition was managed at home was due to the unavailability or unaffordability of medical services and drugs -- Solace had been residing in Ghana for the most recent few years. The visa officer formed the opinion that Solace would, if permitted to enter Canada, use medical services that would be available to her, and in so doing, would cause an excessive demand on health or prescribed social services. Therefore, immigrant visas to the family were refused.
APPLICANT'S ARGUMENTS
[11] The applicant argues that the visa officer breached the duty of fairness and erred in law in many instances:
Breach of fairness:
[ · ] The fairness letter did not point out that "excessive demand on health services" was the main issue;
[ · ] Failed to identify the medical condition with a numeric designation;
[ · ] The visa officer was unsure if the excessive demand related to social services or health services;
[ · ] The visa officer did not ensure that the medical officer reviewed the applicant's April 19, 1999 letter .
The applicant argues that the medical officer erred in law by:
[ · ] Confusing excessive demand with availability and need;
[ · ] Did not have the April 19, 1999 letter before her;
[ · ] Did not notify the applicant that the letter from his doctor was thought of as "ridiculous";
[ · ] Did not assess the applicant's condition over a lifetime;
[ · ] Did not inform the applicant of the standard she was using to access "excessive" demand;
[ · ] Presupposed that sickle-cell ememia is fatal;
[ · ] Failed to deal with the medical evidence in a fair manner.
RESPONDENT'S ARGUMENTS
| [12] The respondent argues that the medical officers and the visa officer correctly |
evaluated the application in accordance with the principles of fairness and reasonably concluded that the applicant's daughter is medically inadmissible to Canada. The respondent argues that only the issue of whether there will be excessive demand is open to review -- the existence of the condition is not.
| [13] The respondent argues that the applicant was informed of the medical assessment |
and given the opportunity to respond to it. His response did not alter the conclusion.
APPLICABLE STATUTE LAW
| [14] Subparagraph 19(1)(a)(ii) of the Immigration Act (the "Act") states: |
| 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 dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont 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; |
| [15] Accordingly, merely suffering from a disease or disorder does not render a person |
| inadmissible: it is the effect of the disease that is critical to the determination. If, because of the nature, severity, or probable duration of the disease, excessive demands on health or social services would occur or might reasonably be expected to occur, the prospective immigrant is medically inadmissible to Canada. |
| [16] Excessive demand has been defined as "more than normal": Yogeswaran v. |
| Canada (M.C.I.) April 17, 1997 (Docket IMM-1505-96). |
| [17] This Court has also held that the visa officer may not review the assessment of |
| medical officers, but may inquire and consider the reasonableness of the conclusion that the prospective immigrant would reasonably be expected to cause an excessive demand on social or health services: Ajanee v. Canada (M.C.I.) (1996), 33 Imm.L.R. (2d) 165. The visa officer can and should ask whether the circumstances of the case indicate that there is in fact a probable excessive demand on health or social services. If the determination of the medical officer turns out to be found unreasonable by the Court or otherwise, then the decision of the visa officer, which was based on that unreasonable determination, will be set aside. |
| ISSUE |
| [18] Should the decision of the visa officer be set aside? |
| ANALYSIS AND DECISION |
| [19] The respective roles of visa officers and medical officers in cases such as the |
| present, were reviewed by Mr. Justice Heald in Fei v. Minister of Citizenship and Immigration (1997), 131 F.T.R. 81 F.C.T.D. He stated at page 91: |
| In my view, when a valid medical opinion is formed under s. 19(1)(a)(ii), that opinion is binding on the visa officer. However, where an opinion involves a patently unreasonable error of fact, is inconsistent or incoherent, or was generated in a fashion contrary to the principles of natural justice, an error of jurisdiction is involved. It cannot be said to be a valid opinion under s. 19(1)(a)(ii). If the visa officer applies such an invalid opinion, then the visa officer has erred in law, and this or her decision may be reviewed in this court on that basis. |
| [20] On the issue of an opinion of a medical officer that admission to Canada " . . . |
| would cause or might reasonably be expected to cause excessive demands on health or social services", Justice Heald wrote at page 93: |
| While this decision is one of a discretionary nature, I am of the view that the medical officers have erred in applying the statutory test. It is an error to state through the medical narrative that the reasons for exclusion were extensive social and educational support services, the need for constant supervision, and the expense and supply of these services, while in actual fact the medical officers conceded that information highly relevant to determination of these factors was not before them. It is also apparent that they did not take effective measures to obtain this information. |
| Here, the medical officers took "effective measures" to ensure that they had an up to date psychological assessment before them. That psychological assessment would appear to indicate substantial progress on Josephine's part over an earlier assessment. The medical officers had available to them current indications of the level of family support available to Josephine. They would appear to have ignored this latter information though it is supportive of a portion of the summary and conclusions from the psychological report quoted earlier in these reasons. |
| [21] The assessment is an individual assessment which must consider each applicant's |
| personal circumstances. In Lau v. Canada (Minister of Citizenship and Immigration) April 19, 1998 [1998] F.C.J. No. 485 (QL), F.C.T.D., Mr. Justice Pinard wrote: |
| The applicant's main contention is that the medical officers failed to consider all of his daughter's personal circumstances prior to declaring her to be medically inadmissible. More particularly, Dr. Gordon Hutchings, as well as the visa officer, rejected family support as a consideration in determining whether or not his daughter was medically inadmissible. |
| [22] Also in Lau, supra, Mr. Justice Pinard stated at paragraph 14: |
| In the circumstances, it is my opinion that the lack of due consideration of "family support" constitutes a blatant failure to consider all of the evidence with respect to the personal circumstances in the applicant's file, and this warrants the intervention of this Court. |
| [23] A review of the record shows the following remarks in the medical officer's report |
| dated December 29, 1998 (Tribunal Record page 19): |
| DIAGNOSIS/DIAGNOSTIQUE |
| 282.8 SICKLE-CELL ANAEMIA |
| NARRATIVE/COMMENTAIRE |
| THIS 17 YEAR OLD APPLICANT HAS SICKLE CELL ANEMIA, [sic] DUE TO HAEMOGLOBIN S DISEASE. SHE HAS MANY EPISODES OF VENO-OCCLUSION (SICKLING CRISIS), THE LAST ONE REPORTED BEING ABOUT SIX MONTHS AGO. HER HAEMOGLOBIN IS IN THE RANGE OF 7gm/dl. |
| [24] I have reviewed both the Tribunal Record and the medical record for facts to |
| substantiate this statement but I was unable to locate any such facts. I did, however, find the following references: |
1. In the report of Dr. E. Akoto dated July 9, 1997:
. . . However, for the past three years she has been relatively well with only minor vascocclusive crises which did not require hospitalization.
2. At page 46/73 of the medical record, the following appears:
3. And at page 39/73 of the medical record, the November 18, 1998 report of Dr. E. Akoto states in part as follows:
MEDICAL REPORT
MS. SOLACE EMEFA KUTUADA; 18 YRS
I reviewed Ms. Kutuadu on 2nd November, 1998. Ms. Kutuadu has SS Haemoglobinopathy - diagnosed during childhood. Chest radiography in July last year showed cardiomegaly but Echocardiography at that time was found to be normal. She is well and asymptomatic and has not had any sickling crises since my last evaluation in July, 1997.
| [25] I have come to the conclusion that the medical opinion in this case includes a |
patently unreasonable error of fact in that the information available to the medical officers was not that the applicant (Solace) had many episodes of veno-occlusion (Sickling Crisis), but was to the contrary that she had very few such crises. The patently unreasonable error of fact results in an error of jurisdiction and the opinion is not a valid opinion under subparagraph 19(1)(a)(ii) of the Act.
| [26] As the visa officer utilized this invalid opinion to arrive at her decision to deny |
visas to the applicants, her decision can be reviewed on that basis. I find that the visa officer has committed a reviewable error and therefore, her decision of May 10, 1999 must be set aside and the file should be referred to a different visa officer and different medical officers for a new determination.
| [27] I have also reviewed the record for information to justify the applicant (Solace) |
"would cause or might reasonably be expected to cause excessive demands on health or social services". Other than the bald statements of the medical officers that she would require "specialized care and extensive use of specialized hospital facilities for diagnostic and treatment". There should be at least some factual background for these conclusions. I am of the view that the visa officer cannot assess the reasonableness of the medical opinion as it relates to "excessive costs" if there is no information as to the extent of the costs to be created by the applicant's (Solace's) medical condition. The review of the medical officer's opinion would, of course, be done in context of the ruling in Fei, supra. The application for judicial review is also allowed for the reasons contained in this paragraph and I grant the same remedy as contained in paragraph 26 of this decision.
| [28] Because of my disposition above, it is not necessary that I deal with the other |
issues raised by this application.
| [29] Counsel for the parties will be provided with an opportunity to make a request for |
certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before January 19, 2001 concerning the certification of a serious question. Counsel for the respondent shall file a written response, if any, on or before January 26, 2001.
| [30] The application for judicial review is allowed and the visa officer's decision shall |
be set aside and the matter referred to a different visa officer and different medical officers for a new determination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
January 12, 2001