Digests

Pervez v. Canada (Minister of Citizenship and Immigration)

IMM-3756-00

2001 FCT 1420, Simpson J.

21/12/01

7 pp.

Judicial review of visa officer's decision applicant's 10-year-old dependent son medically inadmissible pursuant to Immigration Act, s. 19(1)(a)(ii)--Son asymptomatic, but medical examinations conducted as part of application process revealing son has one enlarged, one undersized kidney and as result has deficient renal function, chronic kidney disease--Expert's first letter indicating "serious possibility that he could develop serious renal failure in the future"; suggested diet, drug to lower proteinuria and protect renal function--Second letter stating impression "serious renal failure would not happen for at least 10 years"--Third letter stating "likelihood of progression of his renal problems, however . . . serious renal failure is sometime away (5-10 years or more)"--Fourth letter stating not possible to provide accurate long-term prognosis, but currently well and one would expect him to have many years of good health-- Applicant arguing that because expert stating there is a drug which can "protect" kidney function, renal failure can be averted, merely possibility and transplant/dialysis which would place excessive demands on our system unlikely to be required--Application dismissed--When read together, letters indicating son likely to experience serious renal failure; only question when--S. 19(1)(a)(ii) prohibiting admission of person whose admission "would cause or might reasonably be expected to cause" excessive demand on health or social services--"Reasonably", "significant" as used in medical officer's report importing meaning beyond possibility--Given high costs of dialysis, transplant surgery report sufficient when addressed only cost--Had medical officer addressed availability of transplant, dialysis services, conclusion about excessive demand would not have changed--As drug will only delay, not avert renal failure, officer not misusing Medical Officer's Handbook or M7 standard described therein--M7 provides "condition . . . would cause excessive demand on health or social services, and which is not likely to respond to treatment"--Medical officer describing conclusion in second letter by saying serious renal failure would not occur for at least 10 years--In fact, second letter indicated that without drug end-stage renal failure was at least 10 years away, leading to presumption that if drug successful, renal failure would be further in future--Reasonable to believe medical officer's misunderstanding caused him to believe renal failure would occur earlier than expert indicated--Even though misunderstood second letter, misunderstanding immaterial because ultimately drug not going to cure son's kidney, and renal failure would occur, and third letter providing revised estimate of when serious renal failure would occur--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(a)(ii).