Date: 20010406
Docket: IMM-3674-00
Neutral citation: 2001 FCT 301
Ottawa, Ontario, Friday the 6th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
MARIEL BEHAGAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] After hearing the oral submissions of counsel, I advised that while I was reserving my decision as to costs I would, for reasons to be delivered, be allowing the application for judicial review. These are my reasons.
[2] Mariel Behagan brings this application for judicial review from the decision of an immigration officer dated June 22, 2000 by which Ms. Behagan's application for status as a permanent resident was refused on the ground that her son, Calinmor, is medically inadmissible under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act").
FACTS
[3] Ms. Behagan came to Canada in 1997 as a Live-in Caregiver. After completing the requirements under the "Live-in Caregiver Program" she applied for status as a permanent resident in Canada. Her application included her husband, her seven-year-old son Calinmor, and other children. Ms. Behagan's husband and children currently live in the Philippines.
[4] In her affidavit Ms. Behagan swore that when Calinmor was seven months old it was discovered that he had a heart murmur. Calinmor was seen by a cardiologist in the Philippines, Dr. Amatong. Dr. Amatong recommended that Calinmor's progress be monitored stating that it was impossible to say whether Calinmor would require medical intervention in the future, that he might never require surgical intervention, and that Calinmor was not to be treated as a "special baby". At the age of seven, Calinmor's age at the time his mother submitted her application for permanent residence in Canada, Calinmor was said to appear and act like any other boy of his age. He was said to be very active, playing sports with his friends and not requiring any special medical attention or medication.
[5] On March 8, 2000, a letter was sent to Ms. Behagan by the immigration officer which in material parts stated as follows:
I have received a medical notification stating Calinmor Cubilo Behagan is suffering from Congenital Heart Disease with Pulmonary Stenosis which in the opinion of a medical officer, his condition is likely to deteriorate without surgery and he will likely need specialists [sic] attention and tertiary care hospital admission to treat his condition. This requirement is expected to place an excessive demand on health care services.
This information leads me to conclude that Calinmor Cubilo Behagan may be a danger to public health in Canada or can be expected to cause excessive demands on health or social services in Canada. For this reason, I could refuse your application for permanent residence.
Before I make a decision whether your dependant is inadmissible, you may respond to the description of your dependants [sic] medical condition with new medical information of your own.
You have until May 8, 2000 to send new information, not previously on his immigration medical file, to the doctor who did your dependants [sic] examination. You must submit the information with the enclosed letter. If the information is not in English or French, you must also include an adequate translation.
[6] In response Ms. Behagan submitted medical information including a letter from Dr. Andanar, Calinmor's physician since 1995, which indicated that Calinmor had suffered from such things as impetigo, bronchitis, warts, a viral infection, and acute tonsillitis. No cardiac difficulties were noted.
[7] By letter dated June 22, 2000, Ms. Behagan was advised that her application for permanent resident status had been refused because Calinmor Behagan had not presented evidence that he was not a person described in section 19 of the Act.
[8] For reasons apparently relating to the fact that this application was processed inland, the immigration officer was never actually in possession of medical notifications stating the opinion of the medical officer and the concurrence of a second medical officer. The CAIPS notes do reflect, however, that the immigration officer received the information contained in the narrative portion of the medical notifications. The initial narrative was as follows:
This 6 year old dependent applicant has congenital heart disease with pulmonary stenosis (vulvar with post-stenotic dilatation). His employment potential may be later restricted in conditions requiring heavy labour. He has cardiomegaly and a prominent pulmonary artery conus segment noted on chest x-ray. The pressure gradient across the pulmonic valve is significant at 55 mmHg such that cardiac surgery is recommended. His condition is likely to deteriorate without surgery and he will likely need specialists attention and tertiary care hospital admission to treat his condition. This requirement is expected to place an excessive demand on health care services. He is therefore presently inadmissible under section 19(1)(a)(ii) of the Immigration Act.
[9] This is the information which lead to the initial "fairness" letter of March 8, 2000. After receipt of the medical information provided by Ms. Behagan a further medical narrative was provided to the immigration officer which, after stating that the new medical information had been received and reviewed, stated as follows:
Based on this information, I feel that this does not alter the original assessment of medical refusal done by Drs. Saint-Germain and Hindle dated 09 February 2000.
Please confirm your concurrence. Thank - you,
Valerie Hindle MD, Senior Medical Officer, Canadian Embassy, Manila
Subsequently the CAIPS notes indicate that the immigration officer was informed that Dr. Saint-Germain had reviewed the additional documents and then stated "I agree that it does not modify the current assessment of inadmissibility".
THE ISSUES
[10] Two issues are raised with respect to the immigration officer's decision:
1) Did the immigration officer err in concluding that the admission of Calinmor would impose excessive demand on health care services due to a failure to connect the medical condition with a finding of "excessive demand"?
2) Did the immigration officer breach the duty of fairness in failing to disclose to the applicant the information in her possession which suggested that Calinmor's medical condition would impose an "excessive demand"?
ANALYSIS
(i) Was there a failure to connect the medical condition with a finding of "excessive demand"?
[11] In Rabang v. Canada (Minister of Citizenship and Immigration) (2000), 8 Imm. L.R. (3d) 233 (T.D.), Sharlow J., as she then was, reviewed in some detail the jurisprudence from this Court which has considered the required nexus between a medical condition and the conclusion that the admission of the person holding the condition would cause or might reasonably be expected to cause excessive demands on health or social services. Justice Sharlow wrote as follows:
17 It was argued at the hearing that I ought to presume that the non-medical aspects of the opinion were based on the medical officer's special knowledge or expertise. I cannot make any such presumption. This Court has said many times that a medical officer is not entitled to presume that a particular medical condition or disability must necessarily result in excessive demand: Deol v. Canada (Minister of Employment and Immigration) (1992), 145 N.R. 156 (F.C.A.); Jiwanpuri v. Canada (Minister of Employment and Immigration) (1990), 109 N.R. 293 (F.C.A.); Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 29 Imm. L.R. (2d) 1 (F.C.T.D.); Litt v. Canada (Minister of Citizenship and Immigration) (1995), 26 Imm. L.R. (2d) 153 (F.C.T.D.).
18 This Court has also said many times that a medical officer's opinion on the question of excessive demand is subject to judicial review and must be justified when challenged. A medical opinion without an evidentiary foundation cannot be justified: Mohamed v. Canada (Minister of Employment and Immigration) [1986] 3 F.C. 90 (C.A.); Ahir v. Canada (Minister of Employment and Immigration), [1984] 1 F.C. 1098 (C.A.); Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (T.D.); Fei v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 274 (T.D.); Fong v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 235 (T.D.); Gao v. Canada (Minister of Employment & Immigration) (1993), 61 F.T.R. 65 (T.D.).
19 It was argued for the Minister that to hold medical officers to this standard would impose an undue administrative burden. I do not accept that argument. A medical officer has a legal obligation to render an opinion on a number of factual questions based on evidence. It is not asking too much to require that such evidence be described by the medical officer in response to an application for judicial review.
20 In this Court, evidence of social cost has been adduced in a number of cases to justify a medical officer's opinion as to excessive demand. I refer, for example, to Ma, supra, Mendoza v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1639, IMM-228-99 (October 29, 1999)(F.C.T.D.), and the proceedings in the Trial Division in Thangarajan, supra (reported at (1998) 152 F.T.R. 91) and the companion case, Yogeswaran v. Canada (Minister of Citizenship and Immigration) (1997), 129 F.T.R. 151 (both affirmed by the Federal Court of Appeal on June 24, 1999), [1999] F.C.J. No. 1022.
21 It was also argued for the Minister that the onus is on the applicants to satisfy the medical officer that Patrick's demands on publicly funded health and social services would not be excessive, and they failed to provide any evidence in that regard. That argument does not address the fundamental problem in this case. The problem is that the record discloses no evidence at all on the critical question of excessive demand.
[12] To this analysis, I would only add the observation that section 22 of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") requires a medical officer, when determining whether the admission of any person would cause or might reasonably be expected to cause excessive demands on health or social services, to consider whether the supply of health or social services that the person may require in Canada is limited to such an extent that the use of such services by the person might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents.
[13] In the present case there is no indication that the medical officer considered the supply of health and services available to treat Calinmor's condition, and no analysis of either whether any required treatment would cause or might reasonably be expected to cause excessive demands on health or social services or whether the use of those services by Calinmor might reasonably be expected to prevent or delay provision of those services to Canadian citizens or permanent residents.
[14] Absent such analysis, founded upon a proper evidentiary basis, the medical opinion was insufficient to support the conclusion that Calinmor's admission would or might reasonably be expected to cause excessive demands on health or social services in Canada. The fact that an individual suffers from a medical condition such that some treatment is likely, does not in itself equate to a finding of excessive demand.
(ii) Was there a breach of the duty of fairness?
[15] The respondent relied upon my reasons in Hersi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2136, IMM-5476-99 (December 11, 2000) (T.D.) to assert that the duty of fairness did not require disclosure of the medical notification in this case because the fairness letter fully disclosed the case to be met.
[16] However, the result in Hersi was premised upon the factual basis that the fairness letter fully disclosed the case to be met. As stated in Hersi at paragraph 22, "[n]o additional information other than that communicated to Mr. Hersi was contained in the initial medical notification".
[17] In the present case, the fairness letter did not fully disclose the case to be met because it failed to advise of the concern expressed in the narrative to the medical notification to the effect that "[h]is employment potential may be later restricted in conditions requiring heavy labour". Pursuant to subsection 22(g) of the Regulations potential employability must be considered by a medical officer when determining whether an excessive demand will be placed upon health or social services. Fairness required disclosure of this aspect of the medical officer's opinion so that Ms. Behagan would know the case to be met and be in a position to respond.
[18] This failure alone, in my view, is sufficient to vitiate the negative decision of the immigration officer.
(iii) Do special reasons exist to justify an award of costs?
[19] Ms. Behagan sought an award of nominal or fixed costs in view of what was characterized as the repeated failure of the Minister's representatives to have proper regard to jurisprudence from this Court and to section 22 of the Regulations. The respondent opposed any award of costs submitting that insufficient grounds existed to support an award of costs.
[20] As noted by Justice Sharlow in Rabang, supra, this Court has on many occasions stated that a medical officer is not entitled to presume that a particular medical condition must necessarily result in excessive demand, and that a medical opinion without an evidentiary foundation cannot be justified. Counsel did not refer me to any case where costs have been awarded as a result of the failure to have regard to those statements. While it may well be that in future costs will flow from a failure to have regard to the requirements set out in the jurisprudence and in section 22 of the Regulations, after careful consideration I have not been persuaded that costs are warranted in the present case.
[21] Counsel posed no question for certification.
JUDGMENT
[22] IT IS THEREFORE ORDERED AND ADJUDGED THAT:
1. The application for judicial review is allowed and the decision of the immigration officer dated June 22, 2000 is set aside.
2. The application for landing is to be referred for reconsideration by a different immigration officer and by two different medical officers. The immigration officer is directed to have regard to the jurisprudence of this Court referred to in the reasons for judgment and to the requirements of section 22 of Immigration Regulations, 1978.
"Eleanor R. Dawson"
Judge