Date: 20000623
Docket: IMM-5362-99
BETWEEN:
ABDERRAHIM ABDELHADI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks judicial review of a decision of the immigration officer dated September 30th, 1999, in which the immigration officer refused the Applicant"s application for permanent residence on the basis of the medical inadmissibility of his dependent daughter who suffers from "Bronchopatie chronique obstructive".
[2] The issues are whether the opinion of the medical officer was reasonable in the circumstances of this case and whether the decision of the immigration officer was made reasonably in accordance with the principles of natural justice and fairness.
[3] The dependent daughter underwent a medical examination for immigration purposes on November 12th, 1998. Doctor Bouyssou concluded as follows:
| "Bon état général d"ensemble chez fillette maghrébine de 6 ans, longiligne leptosome sans séquelles chirurgicales; bronch-pneumopathie chronique d"origine périnatale traîtée en permanence et périodiquement réévaluée, compatible avec une activité sensiblement normale, sans autre pathologie majeure. Développement harmonieux, niveau psycho-scolaire normal à cet âge." |
[4] The prognosis was favourable provided that the dependent daughter was monitored regularly and receives adequate long term care. A medical notification was issued June 3rd, 1999, by Doctor Michel Lapointe, he confirmed the diagnosis of Bronchopathie chronique obstructive. He found a deterioration in her condition was to be expected, he indicated that she requires daily respiratory physiotherapy with antibiotics, Bronchodilators and anti-inflammatories. In light of this, it was reasonable to assume that her admission would place an excessive burden on Canadian Health Services and for this reason the Applicant"s application for permanent residence could be refused.
[5] The immigration officer subsequently sent out a so called "Fairness Letter" dated July 26th , 1999, giving the Applicant an opportunity to provide further information with respect to the health of the dependent daughter. In response to the fairness letter the Applicant sent a letter dated August 16th, 1999, to the Respondent which stated that the daughter had not fallen ill during the seven months that she has been in Canada, that she does attends school regularly and had not been absent from school on even a single occasion for medical reasons. The Applicant also provided a copy of a report of Doctor Gurwitz, a Pediatric Respirologist who had been treating the daughter in Canada.
[6] Doctor Gurwitz found that: "her respiration was completely stable and in fact asymptomatic". On June 9th , 1999, and August 4th, 1999 he found: "she was asymptomatic and had no medications over the last 2 weeks." He concluded as follows:
| "My present assessment of Ouafae is that she has mild asthma which is improving. Eventration of her diaphragm which requires no treatment and a past history of aspiration and gastroesophageal reflux resulting in respiratory deterioration requiring oxygen which has completely resolved. Her prognosis at this point looks excellent and I feel we need to continue to monitor her respiratory status but she in fact is behaving like a normal 6 year old. As you know the lung continues to grow after birth to about 4 years of age and slower after that and I would assume that this young lady"s respiratory problems secondary to her neonatal problems which has all resolved. Her lung has grown. If she continues in this fashion without any major set backs one can anticipate to be a normal respiratory outcome with some hyperactive airways which can easily be treated." |
[7] On September 17th, 1999, Doctor Lapointe wrote a memo setting out the why the new medical information failed to change his opinion, he stated:
| ".... Le Docteur Gurwitz confirme les diagnostics pulmonaires (i.e. bronchopathie chronique obsturctive, trachéodyskinésie et déhiscence diaphragmatique droite) et indique que depuis son arrivée au Canada elle est stable. Elle a abandonné sa médication très récemment. L"enfant est au Canada depuis janvier 1999. Donc malgré ces informations nouvelles qui semble favorables pour la candidate, nous n"avous que très peu de recul au Canada. C"est à dire que quelques mois. C"est à mon avis trop peu pour réviser le profil M-5 actuel, basé sur plusieurs rapports médicaux ainsi que des analyses objectives. C"est son pronostic à moyen terme et les risques de complications graves qui ont motivés ce refus temporaire qui pourra être révisé lorsque nous aurons un recul plus important." |
[8] The immigration officer set out his refusal letter September 30th, 1999, and stated that the new medical information has been reviewed but did not change the medical opinion of the doctor in charge.
Analysis
[9] The applicable law with respect to the review of medical opinions is set out in Gao v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 306 where Dubé J. states:
| "The governing principle... is that reviewing or appellate courts are not competent to make findings of fact relating to the medical diagnosis, but are competent to review the evidence to determine whether the medical officers" opinion is reasonable in the circumstances of the case. The reasonableness of a medical opinion is to be assessed not only as of the time it was given, but also as of the time it was relied upon by the Immigration Officer, since it is that decision which is being reviewed or appealed. The grounds of unreasonableness include incoherence or inconsistency, absence of supporting evidence, failure to consider cogent evidence, or failure to consider the factors stipulated in s.22 of the Regulations." |
[10] The Applicant submits that the medical officer ignored the information contained in the Doctor Gurwitz"s report of August 12th , 1999. The Applicant submits that Doctor Gurwitz gave the dependent daughter a clean bill of health. The Applicant also submitted that Doctor Gurwitz did not confirm a diagnosis of Bronchopathie chronique obstructive, however, he certainly recited the history in this respect. He does say:
| "Her prognosis at this point looks excellent" |
But, he continues and says:
| "I feel we need to continue to monitor her respiratory status" |
He also points out in his conclusion that:
| "If she continues in this fashion without any major set backs one can anticipate to be a normal respiratory outcome with some hyperactive airways which can be easily treated" |
[11] He is saying if there is no "major set backs then she should be all right." However, he does not rule out the possibility of a major set back and this is the basis for the medical officer"s opinion on medical inadmissibility. Doctor Gurwitz only saw the dependent daughter for the first time three months prior to giving his opinion and secondly, he pointed out in his letter that she had only been off medication for two weeks.
[12] Doctor Lapointe states in his view that this is too short of time to revise the dependent daughter"s medical profile. In my view, none of the grounds of unreasonableness cited by Dubé J. are present in the case before me. Accordingly, the opinion of the medical officer was reasonable in the circumstances of this case.
[13] It is also my view that the decision of the immigration officer was made reasonably in accordance with the principles of natural justice and fairness. The immigration officer was bound by a valid medical opinion and as stated earlier the medical examination and subsequent report by Doctor Gurwitz are not inconsistent with nor do they contradict the medical officer"s opinion.
[14] Thus, there is no contradictory information which should have alerted the officer of the need for further investigation. It was reasonable for the immigration officer to rely on the medical opinion which found that it was still too early to revise the medical profile of the Applicant"s daughter. The immigration officer was obligated to inform the Applicant of the decision with respect to the Applicant"s application for permanent residence since the medical opinion was without error on its face.
[15] Accordingly, the decision of the immigration officer was made reasonably in accordance with the principles of natural justice and fairness.
[16] The application for judicial review is dismissed.
"W.P. McKeown"
| J.F.C.C. |
Toronto, Ontario
June 23rd, 2000.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5362-99 |
| STYLE OF CAUSE: ABDERRAHIM ABDELHADI |
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
| DATE OF HEARING: THURSDAY , JUNE 22, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
| DATED: FRIDAY, JUNE 23, 2000 |
| APPEARANCES BY: Mr. Peter J. Reiner |
| For the Applicant |
Mr. Ian Hicks
| For the Respondent |
| SOLICITORS OF RECORD: Peter J. Reiner |
Barrister & Solicitor
2200 Yonge Street
Suite 601
Toronto, Ontario
M4S 2C6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000623
Docket: IMM-5362-99
BETWEEN:
| ABDERRAHIM ABDELHADI |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |