Date: 19980928
Docket: IMM-2700-97
BETWEEN:
DORA AMOAH BOATENG
ERNEST OWUSU BOATENG
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The immigration officer rejected the applicants" application for permanent residence under the Deferred Removals Orders Class on the grounds that the admission to Canada of Dora Amoah Boateng ("the applicant") would cause or might reasonably be expected to cause excessive demands on health services pursuant to subparagraph 19(1)(a )(ii) of the Immigration Act.1
[2] Section 22 of the Immigration Regulations, 19782 sets out the factors to be considered by medical officers in determining whether the applicant"s admission would cause "excessive demands" on health services. Those factors relevant to this case include:
(a) any reports made by a medical practitioner with respect to the person;
...
(e) whether the supply of health or social services that the person may require in Canada is limited to such an extent that
| (i) 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, or |
(a) tout rapport ayant trait à la personne en question rédigé par un médecin ;
...
(e) si la prestation de services sociaux ou de santé dont cette personne peut avoir besoin au Canada est limitée au point
| (i) qu"il y a tout lieu de croire que l"utilisation de ces services par cette personne pourrait empêcher ou retarder la prestation des services en question aux citoyens canadiens ou aux résidents permanents, ou |
| (ii) the use of such services may not be available or accessible to the person; |
(f) whether medical care or hospitalization is required;
...
(h) whether prompt and effective medical treatment can be provided.
| (ii) qu"il est possible qu"on ne puisse offrir ces services ou que ceux-ci ne soient pas accessibles à la personne visée ; |
(f) si des soins médicaux ou l"hospitalisation s"impose ;
...
(h) si un traitement médical prompt et efficace peut être fourni.
[3] It is common ground that the medical opinion declaring an applicant inadmissible pursuant to paragraph 19(1)(a) must be concurred in by at least one other medical officer.
[4] The applicant was asked by the respondent to undergo a medical examination upon the disclosure, in her application for landing, that she had a physical disorder arising from pregnancy. Some months after the applicant"s medical examination, the immigration officer
received a medical notification which provided this diagnosis and prognosis:
| FOCAL SEGMENTAL GLOMERULOSCLEROSIS |
| This applicant has severe renal disease with proteinuria and her condition is likely to deteriorate progressively. She will probably require specialized medical and hospital care and can reasonably be expected to make excessive demands on medical services. |
The medical notification was signed by both the author of the medical opinion and the concurring medical officer.
[5] The two doctors summarized the applicant"s condition under the code M5, which is defined in the respondent"s Immigration Manual: "has a condition which is likely to cause demands on health or social services to such an extent that the applicant is at present inadmissible under subparagraph 19(1)(a )(ii) but for which the expected response to treatment is such that future admission could be considered".
[6] The immigration officer communicated the substance of this medical notification in "a fairness letter"3 to the applicant and invited her to respond with any new medical information prior to the decision being made on her application for permanent residence. The letter stated in part:
| I have received a medical notification stating that you are suffering from Focal Segmental Gloerulosclerosis which in the opinion of a medical officer, you have severe renal disease proteinuria and your condition is likely to deteriorate progressively. |
...
| If you chose not to respond with the additional information or it does not change the opinion of the medical officers, your application may be refused. |
[7] In response to the immigration officer"s letter, the applicant"s treating nephrologist wrote to the appropriate government medical directorate and, after setting out his four-year treatment of his patient, concluded as follows:
| I am delighted with how Dora is doing. Her kidney function remains stable and her proteinuria has decreased from the nephrotic range progressively. This is the lowest she has ever been and it shows that her condition is in partial remission. |
| While focal sclerosis can be a progressive kidney disease, in Dora"s case I have been following her for almost 4 years and her pattern has been one of spontaneous improvement. Her prognosis over the short to medium term is excellent. Her health is excellent and she can have full employment. She will only require seeing a physician approximately twice per year. Her pharmacological regimen has not needed to be increased. |
| In my opinion, Dora is extremely unlikely to cause excessive demands upon our health care system within the next 5 years. |
[8] This additional medical information was considered by the respondent"s principal medical officer. His original opinion did not change:
| It would appear that this applicant"s condition is improving and appears to be in "partial remission". |
| However, her condition has not yet stabilized, and we cannot as yet consider an upgrading of her M-5 profile which still remains unchanged at the present time. |
On the basis of this further advice from the principal medical officer, the immigration officer refused the applicant"s application for permanent residence on the grounds that she was a person described in subparagraph 19(1)(a )(ii).
[9] Counsel for the applicant did obtain, through an access to information request, a copy of the principal medical officer"s handwritten response to the applicant"s additional information. This document, which does not form part of the tribunal record, includes an unidentified person"s notation: "as discussed" with the concurring medical officer. There is no evidence, however, from the concurring medical officer that he was informed of the report from the applicant"s physician or that he continued to share the opinion of the principal medical officer upon receipt of the new information.
[10] In my view, the statutory requirement of a concurring medical opinion has not been established in this case. The initial medical notification properly discloses the concurring opinion. The second medical officer signed the form to indicate his concurrence with the opinion expressed by the principal medical officer. However, the immigration officer"s fairness letter continued the medical opinion process. It was incumbent on the immigration officer to assure that both of the respondent"s medical officers reviewed the report of the applicant"s physician and that both maintained their original opinion even after considering the supplementary information. The record does not disclose that this was done. For this reason alone, the immigration officer"s decision must be set aside.
[11] There is a second issue which warrants comment. It is acknowledged that the applicant"s condition can be a progressive kidney disease. The applicant"s nephrologist stated that it was "extremely unlikely ... within the next 5 years that she would cause excessive demands on health services". His prognosis was that she would be examined by a physician approximately twice yearly. This information did not convince the respondent"s principal medical officer to adopt a different view of the applicant"s condition.
[12] In deciding upon the application for permanent residence, the immigration officer must inquire into "the reasonableness of the expectation expressed by the medical officers that the subject will cause excessive demands to be made on health or social services".4 This is not to say that the opinion of the immigration officer may merely be substituted for that of the medical officer. However, where the opinion of the medical officers appears to be unreasonable in the face of the available material, the immigration officer must inquire further before deciding that the applicant is medically inadmissible pursuant to paragraph 19(1)(a).
[13] In this case, there were apparently conflicting medical opinions. The applicant"s pattern of "spontaneous improvement" over the four years she was seen by her treating nephrologist and his opinion concerning the limited care she would require over the next five years cover a span of almost a decade. There appears to be a wide gap between this opinion and the unchanged view of the respondent"s medical officer that the applicant"s condition was "likely to deteriorate progressively". There may be supplementary information from each side not made available to this Court. While I need not decide the issue of the immigration officer"s role in this case, I am satisfied that further information was required before a negative decision could be reached on the grounds that the applicant"s condition would cause or might reasonably be expected to cause excessive demands on the health system.
[14] The application for judicial review is granted on the grounds that the immigration officer"s negative decision is not supported by a concurring medical opinion.
[15] Neither party suggested the certification of a serious question.
Judge
Ottawa, Ontario
September 28, 1998
__________________1 R.S.C. 1985, c. I-2, Subparagraph 19(1)(a )(ii) states:
| 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,...(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 dont la nature, la gravité ou la durée probable sont telles qu'un médecin agréé, dont l'avis est confirmé par au moins un autre médecin agréé, conclut :...(ii) soit que leur admission entraînerait ou risquerait d'entraîner un fardeau excessif pour les services sociaux ou de santé; |
The applicants" application for permanent residence as members of the Deferred Removals Orders Class was made pursuant to subsection 114(2) of the Act and section 11.401 of the Immigration Regulations, 1978.
2 SOR/78-172, as amended. The meaning of "excessive demands" and the factors set out in section 22 of the Immigration Regulations have been considered by Gibson J. in Jim v. Canada (Solicitor General) (1993), 69 F.T.R. 252, 22 Imm. L.R. (2d) 261; and Fong v. Canada (Minister of Citizenship and Immigration) (1997) 126 F.T.R. 2335.
3 In Gao v. Canada (Minister of Employment and Immigration) (1993), 18 Imm. L.R. (2d) 306 (F.C.T.D.), Dubé J. stated at page 316: "... the Immigration Officer owed a duty of fairness to consider all relevant reports, to inform Gao of a negative assessment and to provide him with an opportunity to counter it."
4 Ahir v. Minister of Employment and Immigration, [1984] 1 F.C. 1098 (F.C.A.) at p. 1101.