Date: 200001211
Docket: IMM-5476-99
BETWEEN:
MOHAMED ABDI HERSI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] This is an application to set aside the decision of an immigration officer denying the request of the applicant, Mr. Hersi, for permanent residence in Canada under the Deferred Removal Orders Class ("DROC").
[2] In a decision made on October 19, 1999, the immigration officer concluded that Mr. Hersi was unable to meet the medical requirements referred to in what was then paragraph 11.401(c) of the Immigration Regulations, 1978 ("Regulations"). That provision stated:
| 11.401 A member of the deferred removal orders class and the member's dependants, if any, are subject to the following landing requirements: ... (c) the member and the member's dependants in Canada have undergone a medical examination by a medical officer that establishes that the member and the member's dependants in Canada are not persons described in paragraph 19(1)(a) of the Act. |
11.401 Les exigences relatives à l'établissement d'un immigrant visé par une mesure de renvoi à exécution différée et des personnes à sa charge, le cas échéant, sont les suivantes : ... c) lui et les personnes à sa charge au Canada ont subit une visite médicale qui est effectuée par un médecin agréé et qui établit que ni lui ni les personnes à sa charge au Canada ne sont des personnes visées à l'alinéa 19(1)a) de la Loi. |
[3] Paragraph 19(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") at all material times provided:
| 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, (i) they are or are likely to be a danger to public health or to public safety, or (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 don't la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, don't l'avis est confirmé par au moins un autre médecin agréé, conclut_: (i) soit que ces personnes constituent ou constitueraient vraisemblablement un danger pour la santé ou la sécurité publiques, (ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé. |
[4] While a number of issues were raised in the applicant's written submissions, once the record before the immigration officer was produced, only one issue remained. The applicant, through his counsel, confined his oral argument to that issue. The issue was whether the immigration officer breached the rules of natural justice by not providing to Mr. Hersi the medical opinions which the immigration officer relied upon to deny Mr. Hersi's application for permanent residence.
FACTUAL BACKGROUND
[5] Mr. Hersi is a 38 year old citizen of Somalia who has been in Canada since 1991. He applied for permanent residence in Canada under the DROC by application dated March 6, 1997. Pursuant to paragraph 11.401(c) of the Regulations then in force, he was required to undergo a medical examination.
[6] The examining physician noted that Mr. Hersi suffered from schizophrenia.
[7] The result of that examination was submitted to Immigration Health Services. A medical officer with Immigration Health Services noted that Mr. Hersi was found on examination to suffer from schizophrenia and that this was a serious disorder which might be expected to cause excessive demands on health or social services in Canada. The medical officer further noted that Mr. Hersi should be advised to seek a medical follow-up. This conclusion was concurred in by a second medical officer. The conclusion was communicated to the immigration officer in a form entitled "Medical Notification".
[8] Subsequently, in a letter dated May 14, 1999, referred to as a "fairness letter", the immigration officer informed Mr. Hersi that:
| This refers to your application for permanent resident status in Canada. |
| I have received a medical notification stating MOHAMMED ABDI HERSI is suffering from schizophrenia. |
| This information leads me to conclude that MOHAMMED ABDI HERSI 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 you are inadmissible, you may respond to the description of your medical condition with new medical information of your own. |
| You have until 14 JULY, 1999 to send new information, not previously on your immigration medical file, to the doctor who did your 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. |
[9] In response, a letter from Mr. Hersi's physician dated July 8, 1999 was submitted on Mr. Hersi's behalf. The letter stated, in part, as follows:
| Mr. Hersi suffers from Schizophrenia for which he has received treatment as of 1994. The most recent hospitalization has been February 25, 1999 to March 02, 1999 for reasons of psychosis associated with this condition. I understand that the stress of his current legal proceedings may have contributed to some exacerbation of his symptoms. |
| Mr. Hersi's condition at this time is very stable. He attends the depot clinic for his regular medications on a consistent basis. He also attends the Community Mental Health Clinic at this facility. His condition is deemed stable. At this time he does not pose a danger to himself nor to his surroundings (others). |
| ... |
| At the present time Mr. Hersi requires Haloperidol 75 mgs IM Q 2 weeks. He also takes Benztropine 2 mgs at bedtime. |
[10] Further information was requested from the physician and Mr. Hersi's physician provided a second letter to Immigration Health Services dated August 19, 1999. This letter stated in part that:
| I am writing in response to your request with regards to additional information concerning Mr. Mohammed Hersi. In the letter from your office, which he represented to me, you asked for information as to the likelihood that he will require Family Benefits Assistance indefinitely. |
| At this time, Mr. Hersi continues to receive treatment on a regular basis and is clinically stable and improving. At present Mr. Hersi's GAF is in the range of 70. He has informed me that he plans to find gainful employment as a laborer and that he feels that he is ready to do this at the present time. If this is the case, then I feel he could undertake such work. |
| Mr. Hersi has not had gainful employment since he took up residence in Canada and has required Family Benefits Assistance during his stay thus far. I can not say for certain that he will require Family Benefits Assistance indefinitely, although, many people with his condition do. |
| If Mr. Hersi indeed feels that he can maintain gainful employment, he should be given the opportunity to demonstrate this ability, if there remains doubt in this issue. |
| Mr. Hersi is of the understanding that this ability to maintain self sufficiency is the cornerstone of the criteria for his continued residence in Canada. If that is the case, he is willing to demonstrate this capacity. I understand that it would be challenging for him to find employment as he has few specific skills and no Canadian experience. A course of trial employment at an agency such as Booth Industries sponsored by the Salvation Army may be indicated, and I will offer Mr. Hersi this suggestion. Many individuals with Mr. Hersi's condition undertake such programmes and, if successful, are able to enter the workforce eventually. The programme is however geared towards individuals with a current disability. |
[11] Thereafter, two medical officers with Immigration Health Services concluded the following, as recorded in a second medical notification:
| This 37 year old applicant has been followed for schizophrenia since 1992. He required hospitalization from 25 February 1999 until 2 March 1999 for an exacerbation of his condition. At present he is deemed stable and his GAF ("global assessment of function") was estimated to be in the range of 70 ("%") recently. However, he has not worked since moving to Canada (April 1992) and has been on provincially funded Family Benefits Assistance for seven years. The psychiatrist felt he should be allowed to try to find and maintain suitable employment and offered to assist him (through referral to an appropriate agency). The psychiatrist did not try to predict the outcome of an attempt to return to work but conceded that many people with his type of illness required assistance indefinitely. (The applicant advised the designated medical practitioner he was a refugee claimant on the current medical examination). |
| His probable requirements would place demands on Canadian social services which are likely to exceed those of most Canadian men. Thus he is medically inadmissible under section 19(1)(a)(ii) of the Act. |
[12] By letter dated October 19, 1999, the immigration officer informed Mr. Hersi that his application for permanent residence was refused because he failed to comply with paragraph 11.401(c) of the Regulations.
THE ISSUE
[13] It was argued that the immigration officer breached the rules of natural justice by not providing the medical opinions contained in the medical notifications to Mr. Hersi. The question to be answered is whether the disclosure of the notifications was required in order to provide Mr. Hersi with a reasonable opportunity in all of the circumstances to participate in a meaningful manner in the decision-making process.
ANALYSIS
[14] Since the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, on two occasions this Court has rejected the argument that, in the absence of special circumstances, the duty of fairness requires that there be greater disclosure to applicants than that provided in the fairness letter. Those cases are Koudriachov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1347, IMM-1218-98 (September 13, 1999) (F.C.T.D.) and Abdelhadi v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1009, IMM-5362-99 (June 23, 2000) (F.C.T.D.).
[15] Greater disclosure has been required where the evidence established that new information or internal policies not contained in the fairness letter were relied upon. See, for example, Maschio v. Canada (Minister of Citizenship and Immigration) (1997), 138 F.T.R. 210 (F.C.T.D.).
[16] In contexts other than those involving fairness letters and paragraph 19(1)(a) of the Act, the duty of fairness has been held to require disclosure of a negative risk assessment in the disposition of an application to remain in Canada made on humanitarian and compassionate grounds (Haghighi v. Canada (Minister of Citizenship and Immigration) (2000), 189 D.L.R. (4th) 268 (F.C.A.)) and to require disclosure of summary reports in the context of a danger opinion issued under subsection 70(5) of the Act (Bhagwandass v. Canada (Minister of Citizenship and Immigration),[2000] 1 F.C. 619 (F.C.T.D.)).
[17] It must be remembered however that the content of the duty of fairness is variable and contextual. Important factors to consider, as noted by the Supreme Court in Baker, supra, include the nature of the decision being made and the process followed in making it; the place of the decision within the wider statutory scheme; the importance of the decision to the individual affected; and that person's legitimate expectations.
[18] Having considered those factors, in my opinion, the duty of fairness did not, in this case, require disclosure of the medical notifications at issue here. While such disclosure, or at the least full disclosure of the contents of such forms, would be required in special circumstances such as were before the Court in Maschio, supra, special circumstances were not present in this case.
[19] In concluding that medical notifications were not required to be disclosed, I have noted that the decision-maker was not an adjudicative body from which formal procedures are more readily expected, but rather was an officer of a government department. The nature of the decision is discretionary, and the immigration officer had an extremely limited authority to review the diagnosis and prognosis of the medical condition. Officers have in the past been found not to be required to check medical assessments against the facts on which they are based (Koudriachov, supra), and have been said to be bound by a valid medical opinion (Abdelhadi, supra).
[20] The ability to meaningfully participate in the decision-making process requires clear notice of the case to be met, a full and fair opportunity to present evidence and submissions relevant to that case, and full and fair consideration of that case by an impartial decision-maker.
[21] Here, the fairness letter fully disclosed the case to be met. It disclosed the source of the concern, which was a medical notification which stated that Mr. Hersi was suffering from schizophrenia, and the nature of the concern, which was that Mr. Hersi "may be a danger to public health in Canada or can be expected to cause excessive demands on health or social services in Canada".
[22] No additional information other than that communicated to Mr. Hersi was contained in the initial medical notification which, in the narrative portion, stated:
| SCHIZOPHRENIA |
| This refugee claimant was noted on examination to have Schizophrenia. |
| The findings are such that a serious disorder which may be expected to cause excessive demand cannot be excluded at this time as the applicant has only been assessed under the medical provisions of Section 19(1)(a)(I) of the Act (Public Health and Safety). |
| Due to the presence of these abnormalitie[s], the applicant should be informed to seek medial follow-up. A new medical examination is required if the Immigration category changes. |
[23] Despite the fact that the decision at issue was of grave importance to Mr. Hersi, disclosure of the initial medical notification would not have in any way enhanced Mr. Hersi's right to meaningfully participate in the decision-making process, nor would it have avoided any risk of error.
[24] As for the disclosure of the second medical notification, given the limited scope of an immigration officer's authority to divert from the opinion contained in such medical notification, I cannot find that fairness required that Mr. Hersi have the ability to make submissions to the immigration officer on the content of the second medical notification. The reasonableness of that medical opinion may be challenged by the applicant in proceedings for judicial review of the officer's decision in accordance with the principles set out in Gao v. Canada (Minister of Citizenship and Immigration) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.).
[25] Here, no challenge was made to the accuracy of the facts which the medical officers relied on in concluding that Mr. Hersi's requirements would place demands on Canadian social services which were likely to exceed those of most Canadian men.
[26] The medical opinion contained no facts that were not either within the knowledge of Mr. Hersi, or submitted on his behalf by his physician. No undisclosed policies were at issue.
[27] For these reasons, I have concluded that the application for judicial review will be dismissed.
[28] Mr. Hersi's counsel sought certification of the following question:
| When a visa/immigration officer receives a Medical Notification indicating that an applicant for permanent residence may be inadmissible pursuant to s. 19(1)(a) of the Immigration Act, do the rules of natural justice require that the "fairness letter" sent to the applicant include the contents of such Medical Notification? |
[29] The respondent's counsel opposed certification of that question and specifically noted that the question did not arise out of the record because the relevant information contained in the medical notification was set out in the fairness letter.
[30] On the evidentiary record before me, I accept the respondent's submission with respect to the question posed. No question will be certified.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
December 11, 2000