Ottawa, Ontario, April 11, 2006
PRESENT: The Honourable Johanne Gauthier
BETWEEN:
ISHTIAQ HOSSAIN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Hossain seeks judicial review of the decision of the visa officer who rejected his application for permanent residence in Canada (skilled worker category) on the ground that he is medically inadmissible.
[2] Mr. Hossain is a resident of Malaysia and a university professor. He included his wife and two children in his application as dependents. The visa officer after assessing his application in September 2004 decided that he met the selection criteria of a skilled worker. However, after the standard medical examination, Dr. Lazarus prepared a medical notification indicating the following:
Diagnosis: (V42) Renal Transplantation
Narrative: This 52 year old applicant, born August 30, 1952, had a kidney transplant performed in 2000 because of renal failure. His sister donated the kidney and his renal function is currently normal. He is currently on the antirejection drugs, cyclosporine 150 mg per day and Cellcept, 2 gm per day. These are very expensive medications that are paid for by provincial health care. He also has hypertension and insulin dependent diabetes, conditions associated with progression of renal disease. His condition is expected to continue. The natural course of this condition is for it to continue and ultimately deteriorate. He requires ongoing supervision and investigation by specialists in nephrology and endocrinology. He requires ongoing treatment with his antirejection dugs which are excessively expensive. Based upon my review of the results of this examination and all the reports I have received with respect to the applicant's condition, I conclude that he has a health condition that might reasonably be expected to cause excessive demands on health services. Specifically, his health condition might reasonably be expected to require services, the cost of which would likely exceed the average Canadian per capita costs over 5 years. The applicant is therefore inadmissible under Section 38(1)(c) of the Immigration and Refugee Protection Act.
(My emphasis)
[3] On January 27, 2005, the visa officer wrote to Mr. Hossain what is commonly referred to as a "fairness letter" in which he advised him of the result of the medical examination and that it was found that his condition "would or might reasonably be expected to place excessive demand on health or social services in Canada, and thus would render you him inadmissible to Canada under section 38(1) of the Immigration and Refugee Protection Act, 2001". The full text of the medical notification was included in this letter and the officer also said:
If there is any other relevant medical information which you believe should be taken into consideration before a final decision is made on your application, please send it. You may also submit any information addressing the issue of excessive demand if it applies to your case.
[4] The applicant was given until March 29 to reply to this letter. On March 21, 2005, Mr. Hossain wrote to the visa officer to give further explanations with respect to his medical condition. He included a letter from Professor Tan who had been following his condition since March 2002 together with the letter from Dr. Pary, the transplant nephrologists outlining his health condition at the time of his discharge in June 2001. This last letter had also been given to the doctor who carried out his standard medical examination and was likely used to assess the medication referred to in Dr. Lazarus' medical notification.
[5] Mr. Hossain also indicated that the medical notification contained an error with respect to his daily dosage of Neoral (cyclosporine) and he also said that he was taking 1 gm of Cellcept per day. He also submitted that he had borne all the medical costs since his transplant operation and was ready to undertake not to claim medical costs relating to his current medical condition from the Canadian health care services. He was ready to sign any declaration or waiver to that effect. He would also undertake to subscript to all the necessary private insurance coverage and indicated that he had submitted in support of his application that he had more than $200,000.00 Canadian dollars in the bank that would enable him to meet the costs of his medicines from his own financial sources.
[6] As it appears from the CAIPS notes and the affidavit of the visa officer, this letter and the information attached to it was sent to Dr. Kennedy for reconsideration of his and Dr. Lazarus's medical opinion.
[7] In his affidavit, Dr. Kennedy indicates that the additional information received simply confirms that Mr. Hossain requires continuous use of very expensive medications and that it contains no new medical information. According to Dr. Kennedy, the dosage used was based on the medication referred to in Dr. Pary's letter of February 2, 2002 which listed among others, "Neoral 75 mg/bd Cellcept 1gm/bd". He states that bd or bid in medical terms means twice a day.
[8] There is no indication in the affidavits of Dr. Kennedy and of the visa officer in the CAIPS notes or in the refusal letter that the medical officers or the visa officer considered at all the applicant's offer to assume the cost of the medication relating to his current medical condition and his personal financial situation.
[9] On May 11, 2005, Mr. Hossain was advised that his application had been rejected because the material provided in his letter did not change the medical officers' opinion.
ISSUES
[10] The applicant raised several issues in his memorandum and at the hearing. First, he objects to the filing of part of the affidavit of Dr. Kennedy on the basis that it refers to information that was not provided to the applicant and does not appear from the copy of the file he received after making a request under the Access to Information Act, R.S., 1985, c. A-1.
[11] Mr. Hossain also argues that the visa officer's decision is patently unreasonable because it is based on an erroneous finding that he was taking 150 mg of cylcosporine ( Neoral) and Cellcept 2 gram per day.
[12] He further submits that the medical officers or the visa officer's analysis was deficient because it failed to consider his personal financial situation as well as his offer to undertake to assume the cost of his medications.
[13] Finally, the applicant argues that the visa officer breached the rules of natural justice by considering extrinsic evidence that had not been disclosed to him and by failing to provide appropriate reasons as to why his additional comments did not change the decision.
[14] It will not be necessary to address all these issues because I believe that the visa officer and the medical officers did not use the proper dosage in their analysis and they failed to actually turn their mind to the applicant's submissions with respect to his financial capacity to personally fund the cost of his medications.
ANALYSIS
[15] There is no need to proceed to a pragmatic and functional analysis to determine the standard of review applicable here because the error would be reviewable whatever standard is applied.
[16] In effect, in this case, the decision maker failed to exercise his discretion after considering all of the information before him.
[17] There is no doubt that when Dr. Pary describes the "current medication" taken by the applicant, he was only referring to the situation at the time he wrote his letter. This letter which was written in February 2002, expressly states at page 4 that the dosage for Neoral "may be reduced at the end of the year to 75-50 mg". The applicant's statement that his dosage in 2005 was in fact 75 mg could not in the circumstances be ignored. This information and the fact that the medical officers rendered an opinion based on the wrong facts were not considered by the visa officer after he received the second medical opinion. The decision is thus patently unreasonable.
[18] Because it is clear from Dr. Lazarus' notes and Dr. Kennedy's affidavit that their prime consideration was the cost of these two expensive medications, this error alone justifies setting the decision aside.
[19] As the matter will be reconsidered, it is important to note that the medical officer should compare the applicant's individual situation to the average cost for Canadian's citizens in the same age group. It is not clear that in the case, this was done.
[20] At the hearing, the respondent indicated that there was no need for the officer to consider the applicant's other comments either because they are not relevant to this assessment as a matter of law or simply because there was insufficient evidence supporting Mr. Hossain's offer. The simple fact that it was possible for the respondent to present alternative arguments on this point raises the issue of whether the decision is sufficiently reasoned.
[21] However, that question of whether or not a decision is sufficiently reasoned with respect to any given issue should only be determined if it is clear that the decision maker has effectively turned his or her mind to the issue. Here, the Court is not satisfied that either Dr. Kennedy or the visa officer considered this issue. Their affidavits are silent on this point.
[22] In the circumstances, it would be improper and premature to determine if as a matter of law this factor needs to be considered and whether the decision was insufficiently reasoned.
[23] The Court notes that since the decision under review was made, the Supreme Court of Canada in Hilewitz v. Canada (M.C.I.), [2005] 2 S.C.R. 706, confirmed that in certain circumstances the financial situation of an applicant is relevant to determine whether his presence in Canada would place excessive demands on our social services. Although the Court was not dealing with health services per se in that matter, it would still be relevant to consider its reasoning.
[24] Certainly, it would be wise to clearly indicate in the CAIPS notes or in the next decision how this issue was dealt with.
[25] The applicant proposed the following question for certification: In light of the Supreme Court of Canada's decision in Hilewitz, where medical inadmissibility is at issue, should an officer consider the financial ability and intent of an applicant to pay for their own medical services, as opposed to social services?
[26] Although this question may become relevant in the future, it is obvious that at this stage an answer to it would not be determinative. At the present time, this matter does not raise any question of general interest.
ORDER
THIS COURT ORDERS that:
The application is allowed. The application of Mr. Hossain shall be reconsidered by different medical officers as well as a different visa officer.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4132-05
STYLE OF CAUSE: ISHTIAQ HOSSAIN v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 3, 2006
APPEARANCES BY:
Matthew Jeffrey for the Applicant
Vanita Goela for the Respondent
SOLICITORS OF RECORD
Matthew Jeffrey
Barrister & Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent