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A-1094-82
Sunita Devi Ahir (Appellant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Heald, Urie and Mahoney JJ.— Vancouver, September 28 and October 4, 1983.
Immigration — Appeal from Immigration Appeal Board decision that appellant member of inadmissible class specified in s. 19(1)(a)(ii) and directing removal — Indian visitor reject ed at port of entry because of medical opinions admission would cause excessive demands on health or social services — S. 19(1)(a) providing at least two medical officers required to certify applicant's admission would cause or "might reason ably be expected to cause excessive demands on health or social services" — Appeal allowed — Board erred in treating as conclusive opinions of medical officers who failed to con sider circumstances of each case — Assistance not requested and no evidence would be — Necessary to distinguish criteria for assessment of prospective immigrant from visitor — Admissibility tests must be relevant to purpose and duration for which admission sought — Adjudicator having power to inquire into reasonableness of expectations expressed by medi cal officers having regard to circumstances of each case — Visa Officer in India improperly advising applicant she should not proceed to Canada without his prior authorization since India listed in Schedule II to Regulations thus enabling citi zens to seek permission from Canadian immigration officer at port of entry to enter Canada as visitor — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(a)(ii) — Immigration Regulations, 1978, SOR/78-172, s. 22(e).
COUNSEL:
J. R. Aldridge for appellant. A. Louie for respondent.
SOLICITORS:
Rosenbloom, McCrea & Aldridge, Vancou- ver, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
HEALS J.: As indicated at the conclusion of the hearing, we are all of the view that this appeal should succeed. The appellant is a citizen of India who sought to enter Canada to visit her father. She was required to undergo a medical examina tion after her arrival at a Canadian port of entry. Thereafter a report was prepared stating that in the opinion of one medical officer, concurred in by another medical officer, the appellant's "... admission to Canada would/might cause excessive demands on health or social services (19(1)(a)(ii) Immigration Act, 1976)". Based on this opinion, a special inquiry was held wherein it was alleged that the appellant was a member of the inadmis sible class described in subparagraph 19(1)(a)(ii) of the Immigration Act, 1976 [S.C. 1976-77, c. 52].'
At the conclusion of the inquiry on November 9, 1981, the Adjudicator found that the appellant was such a person and, accordingly, issued an exclusion order against the appellant. However, the inquiry was subsequently reopened and, after hearings conducted by the Adjudicator at which further documentary evidence was adduced and further representations were made by the case presenting officer and counsel for the appellant, the Adjudicator, by decision dated December 22, 1981, reversed her previous decision and granted the appellant admission to Canada as a visitor for a period of two months on condition that she not attend any school in Canada and that she not engage in employment in Canada. The respondent in this appeal appealed that decision by the Adjudicator to the Immigration Appeal Board. The Board set aside the Adjudicator's decision of
' Paragraph 19(1)(a) reads as follows:
19. (1) No person shall be granted admission if he 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;
December 22, 1981, declared that this appellant is a member of the inadmissible class of persons specified in subparagraph 19(1)(a)(ii) of the Act and directed the removal of the appellant from Canada. This appeal is from that decision of the Board.
In my view, the Board erred in appearing to treat as conclusive the opinions of the two medical officers provided for in paragraph 19(1)(a) supra. I would observe initially that, pursuant to that paragraph, the medical officers are required to certify that an applicant's admission would cause or "might reasonably be expected to cause exces sive demands on health or social services". (Emphasis added.) Immigration Regulation 22(e) [Immigration Regulations, 1978, SOR/78-172] is also pertinent and reads as follows:
22. For the purpose of determining whether any person is or is likely to be a danger to public health or to public safety or whether the admission of any person would cause or might reasonably be expected to cause excessive demands on health or social services, the following factors shall be considered by a medical officer in relation to the nature, severity or probable duration of any disease, disorder, disability or other health impairment from which the person is suffering, namely,
(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
(ii) the use of such services may not be available or accessible to the person;
When this regulatory provision is read along with subparagraph 19(1)(a)(ii) of the Act (supra), it seems evident that the medical officers when giving their opinion must, in forming that opinion, have regard to the individual circumstances of each case. It seems equally clear that the medical officers did not take into consideration the particu lar circumstances of this case since in a letter to the Canada Immigration Centre, dated December 16, 1981, Dr. Purser, the medical officer who gave the opinion relied on by the Commission stated: "The wording of the Immigration Act does not differentiate between visitors and immigrants or any other group and the medical examinations and assessments are for the most part done equally without regard to the prospective status of the
individual." (Volume 1, Appeal Book page 45). Further explanation of the opinion formed by the two medical officers therein is to be found at page 44 of Volume 1 of the Appeal Book where they state: "Applicant has a medical condition as a result of which she will require special schooling and vocational assistance. The availability of these services is already limited. Even with this assist ance there is a strong probability she will not be trainable to the extent of being self-supporting and will need continuous family or social service sup port. She will therefore cause an excessive demand on social services."
As pointed out by the Adjudicator, the evidence adduced before her indicated that no such assist ance was requested or would be requested during the applicant's visit to Canada. Accordingly, I agree with the Adjudicator that the criteria appro priate for the assessment of a prospective immi grant under subparagraph 19(1)(a)(ii) are not necessarily synonymous with suitable criteria for assessment of a prospective visitor who seeks to visit Canada for a few months. I agree with the Adjudicator's view that: "Tests of admissibility must be relevant to the purpose and duration for which admission is sought." Having concluded that the opinions of the medical officers herein were formulated on an improper basis, did the Adjudicator have the power to inquire into the validity of those opinions? I am satisfied that an Adjudicator has that power when conducting an inquiry, the purpose of which is to determine whether or not the person concerned is a member of the inadmissible class described in subpara- graph 19(1)(a)(ii). That subparagraph requires the Adjudicator to inquire, inter alia, into the reasonableness of the expectation expressed by the medical officers that the subject will cause exces sive demands to be made on health or social services. In this case, because the medical officers operated on an erroneous basis and used improper criteria, the Adjudicator was certainly entitled to conclude, as she did, that the expectation herein expressed by them was not reasonable. The Board, in holding that the Adjudicator is not entitled to question the opinions of the medical officers, expressed the view that to permit an Adjudicator to decide as this Adjudicator did would produce an unsatisfactory situation in that adjudicators and
the Board would be empowered to rule on conflict ing medical evidence.
I do not agree that the statutory scheme should be so construed. The Act clearly defines a "medi- cal officer" as "a qualified medical practitioner authorized or recognized by order of the Minister of National Health and Welfare as a medical officer for the purposes of this Act". That defini tion thus excludes the opinions of doctors not appointed under the Act. In my view, paragraph 19(1)(a) establishes the authority of two medical officers as defined by the Act. However, I think that authority is subject to the constraint of being reasonable. The statutory scheme requires the Adjudicator initially, and, in cases where an appeal lies to the Board, subsequently the Board, to decide whether the "expectation" expressed by the medical officers is "reasonable" having regard to the circumstances of each individual case.
In the instant case, the Board has interpreted subparagraph 19(1)(a)(ii) as though the subpara- graph did not contain the word "reasonably". In so doing, I think the Board erred in law and that this error is sufficient of itself to vitiate the decision of the Board.
Counsel for the appellant raised an additional ground of appeal in his memorandum upon which he relied at the hearing of the appeal. Respond ent's counsel, while joining issue with the appellant on this ground in his written memorandum, made no submissions in respect thereof at the hearing.
The appellant's complaint was that the Board erred in expressing the view that the Visa Officer in India acted properly and within the authority conferred upon him when, in a letter to the appli cant advising her that her application for perma nent residence had been refused on medical grounds, advised the applicant further that she should not proceed to Canada without his prior authorization. In my view, this submission is well founded. At all relevant times India was a country listed in Schedule II to the Regulations thus en abling citizens of India to seek permission from a Canadian immigration officer at a port of entry to enter Canada as a visitor. The jurisdiction of the Visa Officer in India was confined to the matter of dealing with the appellant's application for perma nent residence. Appellant's counsel said that this
error in law by the Board was sufficient, of itself, to require that the Board's order be set aside. Since I have concluded earlier herein that the Board's decision must be set aside because of its failure to properly interpret and apply the provi sions of subparagraph 19(1)(a)(ii) of the Act, it is not necessary to determine whether this additional error could, of itself, form the basis for setting aside the Board's order. I thought it proper, how ever, since the matter was raised, to express the view that the Visa Officer in India erred in pur porting to refuse the applicant's admission to Canada as a visitor.
In his memorandum counsel for the appellant also submitted that the Board erred in ruling that section 73 of the Immigration Act, 1976 does not offend the Canadian Bill of Rights [R.S.C. 1970, Appendix III]. Counsel for the respondent joined issue with the appellant on this ground of appeal. At the hearing of the appeal, counsel were advised that since the Court had concluded that the appeal should be allowed on the basis of the Board's error in interpreting and applying subparagraph 19(1)(a)(ii), no useful purpose would be served by hearing argument on the Bill of Rights issue.
For all of the above reasons, I would allow the appeal and set aside the decision and order of the Immigration Appeal Board herein pronounced September 22, 1982 and amended September 28, 1982. I would restore the decision of Adjudicator L. Leckie, dated December 22, 1981 wherein, pursuant to subsection 35(1) of the Act, she grant ed the appellant admission to Canada as a visitor for a period of two months (until February 22, 1982) on condition that she not attend any school in Canada and that she not engage in employment in Canada.
URIE J.: I agree.
MAHONEY J.: I agree.
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