Date: 19990903
Docket: IMM-1218-98
BETWEEN:
VALENTINE KOUDRIACHOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.
| A. INTRODUCTION |
[1] In 1995 Valentine Koudriachov, his wife and dependent children applied to the Canadian Embassy in Moscow for visas to be admitted to Canada as permanent residents. Mr. Koudriachov applied in the independent immigrant category. The Koudriachovs are citizens of Uzbekistan.
[2] In a letter dated December 1997 the visa officer informed Mr. Koudriachov that the applications had been refused because Mr. and Ms. Koudriachov"s daughter, Daria, was inadmissible under subparagraph 19(1)(a)(ii ) of the Immigration Act, R.S.C. 1990, c. I-2. In the opinion of the medical officers she was suffering from a disability the severity, nature and probable duration of which meant that her admission might reasonably be expected to cause excessive demands on health or social services in Canada.
[3] The visa officer"s letter explained that Daria had been diagnosed as suffering from developmental delay, and that this condition would probably require her enrolment in special education in Canada and periodic review by a multi-disciplinary team of professionals. It was also noted that she had epilepsy.
[4] In the application for judicial review of the refusal to issue the visas it was submitted on behalf of Mr. Koudriachov that the decision was procedurally unfair; was made without regard to the evidence; and had not taken into account the particular circumstances of Daria.
| B. FACTUAL BACKGROUND |
| (i) The Medical Reports |
[5] The application record contains several medical reports on Daria that were assembled for the purpose of the visa application.
| a) April 1996 report |
[6] The first report is dated April 1996 and was signed by a Dr. Bakhodirov, a neuropathologist and neuropsychologist, and a senior researcher at a medical research institute in Tashkent.
[7] The report notes that Daria was receiving medication for epilepsy and that she was experiencing epileptic attacks approximately every ten days; previously, the attacks had been once a week. It was also noted that Daria had not started to speak until she was 19 months old.
[8] The report was somewhat mixed on her current emotional and mental development. On the one hand, for example, her emotional reactions were said to be immature, deficiencies were noted in her speech development, and "some retardation in mental development" was indicated. On the other hand, it was said that, for example, she answered questions correctly, knew seven colours and the letters of the Cyrillic alphabet, and could count to 100.
[9] At that time Daria was nearly 8 years old and was apparently not attending school because of the lack of appropriate facilities. Her inability to attend school seems also to have been partly a result of the treatment that she was receiving for epilepsy.
[10] The report recommended more examinations, therapy to improve metabolic processes of the brain and the arrangement of "permanent classes in individual training course". By way of prognosis the report stated that, with the correct "treatment preparations schedule",
| The girl will be able to continue normal mental and physical development, to visit school with limited number of students. |
[11] On the form entitled "Medical Report for Canadian Immigration", which was completed in 1996, Daria"s mental development was marked as "below normal", although no evidence of mental illness was noted.
b) November 1996 report
[12] Dr. Lazarus, a medical officer with Immigration Canada who was based in London, requested a follow-up report on Daria from Dr. Bakhodirov.
[13] In a report dated November 1996 Daria was said by Dr. Bakhodirov to answer questions and perform tasks quickly and correctly, and to be more sociable and persevering. She was being taught at home, with some success, although she still exhibited fatigue and irritability. Her epileptic attacks were recurring on average only once every four weeks.
c) May 1997 report
[14] In a third report from Dr. Bakhodirov, Daria was found to have made good progress, and to have the intellectual development of a 6-7 year-old child. At that time Daria was nearly 9 years old. Distraction and fatigue were continuing problems.
[15] Her special training requirements were said to be attending schools with a limited number of pupils and regular special education classes.
[16] This report provided the basis for the information entered on the second Medical Report for Canadian Immigration form, completed in May 1997. Daria"s mental development was marked as normal; her monthly epileptic seizures were noted and the prognosis was that:
| with correct selection of preparations schedule, the girl will be able to continue normal mental and physical development. |
| (ii) The Medical Assessment |
[17] On the basis of the above information Dr. Lazarus advised Dr. Giovinazzo, Director of Medical Immigration Services in Ottawa, that he had provisionally classified Daria as M5, a notification that rendered her inadmissible under subparagraph 19(1)(a)(ii) of the Act.
[18] Dr. Giovinazzo agreed with the M5 refusal, but suggested that the last two sentences of the accompanying narrative drafted by Dr. Lazarus should be amended to read as follows:
| She requires special education in a small class setting and she would likely require regular review by a multi-disciplinary team experienced in dealing with children with developmental delay. This team would likely include specialists such as educational psychologists, special education teachers, occupational therapists, pediatric psychiatrists, pediatric neurologists and social workers. |
| If admitted to Canada she and her family will be eligible for and will likely require a variety of educational, medical and social services. These expected requirements are excessive when compared with the average Canadian of this applicant"s age making her inadmissible under section 19(1)(a)(ii) of the Act. |
[19] At this point, the notification and narrative were sent to the visa officer in Moscow who issued a "pre-med refusal letter" which indicated the reasons for the proposed refusal and gave the applicant sixty days to supply additional medical information that was not already in the file.
[20] The diagnosis given was "developmental delay"; it was also noted that Daria had epilepsy. The narrative included the sentences quoted above, and the following:
| Your daughter has been diagnosed as having developmental delay and epilepsy. She has learning and cognitive difficulties associated with developmental delay. She has difficulty problem solving, and has attention deficit problems with fatigueability and distractability. |
| (iii) The Response |
[21] Mr. Koudriachov responded to this letter by saying that he and his wife were surprised that Daria had been diagnosed as suffering from "developmental delay". He stated that she was a normal child in all respects, having just completed first grade with considerable success in a general school, a fact that is corroborated by her school report. Daria was 9 years old, and thus 2 or 3 years behind her peers in school.
[22] The applicant also submitted a further report from the research institute in Tashkent, although this time Daria had been examined by a different doctor. In this report, dated July 1997, Daria was said to answer questions quickly and correctly; to read and write independently; and to be interested and oriented. In a word, she was making good progress. Her epileptic seizures were now only occurring every 30 days.
| (iv) The Decision |
[23] Having read all the material in the file Dr. Lazarus still thought that M5 was the appropriate assessment, noting, erroneously, that Daria "only had one [epileptic] seizure per week", rather than monthly. Dr. Giovinazzo asked a colleague, Dr. St.-Germain, for an opinion. He agreed with that of Dr. Lazarus. Dr. Giovinazzo confirmed Dr. Lazarus" opinion.
[24] Daria was accordingly found to be medically inadmissible for the reasons given to the applicant in the pre-refusal disclosure package.
| C. ISSUES |
[25] In his oral argument counsel challenged on the following grounds the finding that Daria was medically inadmissible and therefore no visa could be issued.
[26] First, the visa officer had failed to examine the medical documents to ensure that the medical officers" conclusions were reasonable, but had surrendered his statutory responsibility for determining whether to issue a visa.
[27] Second, it was a breach of the duty of fairness only to invite the submission of medical evidence that was not already in the file, and not to ask the applicant to respond on the issue of "excessive demand".
[28] Third, the officer failed to take into consideration the particular circumstances of Daria, in particular her family"s ability to provide whatever support she might need without recourse to publicly funded services.
D. ANALYSIS
Issue 1
[29] At the examination for discovery the visa officer stated that he considered the medical narrative and the notification. Counsel"s complaint was that the officer should also have scrutinized the supporting medical documentation with sufficient care to have enabled him to detect the error in the assessment about the frequency of Daria"s epileptic attacks.
[30] Given the extremely limited scope of review permitted of medical officers" diagnosis and prognosis of a medical condition, I cannot agree with counsel"s submission. Visa officers are not required to check medical assessments against all the medical information on which they are based. Further, the particular error to which he points was not material to the decision. The refusal to issue the visa was based on developmental delay, not epilepsy, even though there was some evidence that the treatment that Daria had been receiving for epilepsy may have delayed her starting at school.
[31] I should also add that at the hearing counsel thoroughly reviewed the whole of the medical material. I also considered the lengthy affidavit sworn by Dr. Giovinazzo, which explains how both the medical assessment of Daria and the excessive demand finding were made. On the basis of these materials I cannot say that the conclusions reached on either element of the statutory definition of medical inadmissibility was unreasonable, or made without regard to the evidence, including the medical reports submitted in response to the "fairness letter".
[32] The conclusions reached by the medical officers were not rendered unreasonable by the fact that in his assessment of developmental delay Dr. Giovinazzo seems to have attached more significance than other doctors might to the fact that Daria did not start speaking until she was 19 months old, or to have given more weight to some aspects of the evidence than to others.
[33] In cases of this kind prognoses must be based on the entirety of the medical evidence that has been gathered over time, and not simply the most recent report. Assessing the progress that Daria was obviously making, and predicting from that its likely trajectory and what services would be required to help her to sustain it, are very much matters of professional judgment with which the Court should generally not interfere.
Issue 2
[34] The answer to counsel"s submission that the applicant should have been invited to respond on the "excessive demand" issue is that there was nothing to prevent him from so doing, especially since the fairness letter set out the educational and related services that in the opinion of the medical officers might reasonably be expected to be required.
[35] Unlike Wong v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-3366-96, January 14, 1998) to which counsel referred, in the case before me the medical diagnosis and prognosis, not excessive demand, were the principal issues in dispute. Further, the diagnosis and prognosis of Daria"s mental development were intimately related to the services that she would require, so that addressing the medical issues would for the most part cover off the excessiveness of the demand as well.
[36] Nor am I satisfied that fairness required greater disclosure of the content of the file. Maschio v. Minister of Citizenship and Immigration (F.C.T.D.; IMM-3354-96; November 14, 1997) is distinguishable. The applicant in that case had not been advised of, and was given no opportunity to respond to, a second medical notification based on new information that had been signed after he had been interviewed. Nor, is this a case where the medical officers were basing their decision on undisclosed internal policies.
Issue 3
[37] I am prepared to accept for present purposes that, when determining the demand that a person"s admission might reasonably be expected to cause to health or social services in Canada, visa officers are required to take into account the extent to which these costs will be borne by the family from their own resources.
[38] However, in this case there was no evidence before the visa officer that the applicant and his wife would themselves satisfactorily meet whatever special educational or developmental needs that Daria might have. Since applicants are responsible for satisfying the visa officer that they meet the selection criteria, it cannot be said in the circumstances of this case that the officer erred in law in not addressing this issue.
| E. CONCLUSIONS |
[39] Despite the obviously sympathetic nature of the facts of this case, it is not the role of the Court to second guess the medical officers and the visa officer, and to substitute its opinion for theirs. For the reasons that I have given I do not find that any reviewable error was committed.
[40] Accordingly, the application for judicial review is dismissed.
F. CERTIFIED QUESTION
[41] I circulated to counsel for the parties a draft of these reasons and invited them to make submissions in writing on whether there was a question to be certified under subsection 83(1) of the Immigration Act.
[42] After reading their submissions I am satisfied that the disposition of this application involves "a serious question of general importance", and accordingly I state the following question:
| "Does the duty of fairness require that the letter advising a visa applicant of a negative medical assessment, and inviting the applicant to submit further medical information not already in the file, must also invite the applicant to submit additional evidence on whether the admission of the person concerned might reasonably be expected to cause excessive demand on health or social services in Canada?" |
OTTAWA, ONTARIO "John M. Evans"
September 3, 1999 J.F.C.C.