Digests

Manto v. Canada (Minister of Citizenship and Immigration)

IMM-5841-99

2001 FCT 572, O'Keefe J.

1/6/01

17 pp.

Judicial review of visa officer's refusal of permanent residence application on ground applicant medically inadmissible--Applicant had kidney transplant in 1986--Taking immunosuppressing drugs--Applied for permanent residence under independent category as financial and investment analyst--Subject of medical report by designated medical practitioner who noted applicant on cyclosporine, costly anti-rejection medication, indefinitely--Report concluding, as would qualify for free supply of immunosuppressors, applicant's admission to Canada would place excessive demand on Canadian health services--Applicant subsequently filing two medical reports reiterating applicant healthy, trouble-free since transplant--Application for permanent residence refused on ground member of inadmissible class of persons described in Immigration Act, s. 19(1)(a)(ii)--S. 19(1)(a)(ii) prohibiting admission of person suffering from health impairment, nature of which meaning admission reasonably expected to cause excessive demands on health, social services--S. 114(1)(m) permitting Governor General to make regulations prescribing factors to be considered in determining whether for medical reasons any person likely to be danger to public health, safety--Immigration Regulations, 1978, s. 22 setting out factors to be considered in determining whether person likely to be danger to public health, safety or whether admission of any person reasonably expected to cause excessive demands on health, social services--Applying Ismaili v. Canada (Minister of Citizenship and Immigration) (1995), 100 F.T.R. 139 (F.C.T.D.), Regulations, s. 22 ultra vires as relates to "excessive demands on health or social services" as no authority in Act, s. 114(1)(m) to make such regulation--Valid medical opinion found under s. 19(1)(a)(ii) binding on visa officer, but only if medical report valid--Error of jurisdiction rendering opinion invalid where opinion involving patently unreasonable error of fact, inconsistent or incoherent, or generated in manner contrary to principles of natural justice--When considering whether demand created by any particular medical condition excessive demand on health, social services, medical officer must have some evidence before him relating to supply of health, social service in Canada: Ma v. Canada (Minister of Citizenship and Immigration) (1998), 140 F.T.R. 311 (F.C.T.D.)--Assessment of excessive demands herein based solely on cost of providing services--No mention of availability, supply of immunosuppressors used by applicant--Medical report deficient in that not discussing supply of services, only cost--Report therefore made on insufficient evidentiary base and not valid opinion pursuant to s. 19(1)(a)(ii)--Since visa officer's opinion based on invalid medical report visa officer erred in law and decision subject to review--Application allowed--Immigration Act, R.S.C., 1985, c. I-2, ss. 19(1)(a)(ii), 114(1)(m) (as am. by S.C. 1992, c. 49, s. 102)--Immigration Regulations, 1978, SOR/78-172, s. 22 (as am. by SOR/78-316, s. 2).